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

I welcome the Minister and his officials to the meeting.


Amendments Nos. 174 to 178, inclusive, 180 to 190, inclusive, 240 to 242, inclusive, 245 and 246 are related. Amendments Nos. 182 and 183 are technical alternatives to amendment No. 181. Amendment No. 241 is a technical alternative to amendment No. 240. Amendments Nos. 174 to 178, inclusive, 180 to 190, inclusive, 240 to 242, inclusive, 245 and 246 will be discussed together.

I move amendment No. 174:

In page 100, subsection (1), line 42, to delete "3 years" and substitute "5 years".

The Deputies may recall that, when I launched the Bill last May, I referenced my wish to put in place a more robust and sophisticated performance measurement framework for public service broadcasters, PSBs. As part of this, I have reviewed the text of the Bill and am proposing certain amendments that are necessary to set clear linkages between the planning and the performance measurement frameworks.

Section 99 provides that the public service broadcasters produce a plan setting out the strategy of the board of the respective corporation. Amendment No. 174 provides that the strategic plan to be produced by RTE and TG4 covers a five-year period rather than the three-year period currently stipulated. The amendment is being made to keep this requirement more in line with the non-statutory code of practice for the governance of State bodies, which provides that State bodies' corporate plans be for a period of five years. I am also proposing, in amendment No. 175, to change the name of the plan from a strategic development plan to a statement of strategy. Revising the title makes for a clearer understanding of what is expected under this provision, namely, a high-level strategy. Subsequent amendments Nos. 176, 177, 178 and part of 188 carry through this revision in the rest of the Bill as necessary.

For the same reasons, I propose amendment No. 180. To my mind, the term "broadcasting charter" may be confused with the fundamental documents that establish organisations such as the BBC. In that regard, the phrase "public service statement" is more apt to describe the intended output under section 101. Amendment Nos. 184 to 187, part of 188, 242, 245 and 246 propose the necessary replacement of the term where it occurs.

I also propose, with amendment No. 181, to delete section 101(2). These detailed and prescriptive items are not proper to the public service statement document. As such, I propose in amendments Nos. 188 and 190 to move them to section 102, which obliges the public service broadcasters to set out their detailed commitments for the year. I also propose by way of the same amendment to delete the reference to "the nature and number of hours" because, in moving these items to the detailed annual statement to be produced by PSBs, these matters will, by the nature of the document, be taken into account. I am also including a specific requirement on the PSBs to commit to broadcasting original children's programming, including animation and programming in the Irish language.

I also propose, by way of amendment No. 189, to amend section 102, changing the name of the annual statement of commitments to an annual statement of performance commitments. Amendment No. 241 to section 124 is a consequential amendment. While retaining the requirement that the annual statement of performance commitments be prepared in accordance with the objectives of the PSB under the Bill and the high-level public service statement, I am also linking its preparation to any extant statement of strategy. It is important that activities entered into in any year should be in accordance with and reflect the overall strategy of the PSB. I am also proposing in amendment No. 189 that this annual statement of performance commitments should include associated performance indicators. This is an important departure from the current provisions and one that goes towards dealing with my wish to see a more robust performance measurement system in place.

Given that it is proposed to include an obligation on the PSBs to outline annually their specific proposals in respect of original children's programming, I do not propose to accept amendments Nos. 182 and 183 tabled by Deputies McManus and Coveney.

Will the Minister not accept them?

No. In respect of amendment No. 240 tabled by Deputy McManus, section 108 requires RTE and TG4 to maximise revenues from their commercial endeavours and to ensure that all transactions between their commercial endeavours and their public service objectives are made on an arm's length basis, that is, on commercial terms. Subsection (3) provides that the compliance committee may, at the direction of the Minister, report on compliance by RTE or TG4 with these revenue maximisation and arm's length provisions.

In essence, section 108 imposes a continuing duty on RTE and TG4. Sections 108 and 109 provide the means for investigation into whether such a duty has been complied with and sections 123 and 124 provide both the BAI and the Minister with sufficient discretion to consider this issue in the context of setting the level of public funding for RTE and TG4. Accordingly, I do not propose to accept the Deputy's amendment.

At the risk of repeating myself, we must bring the unacceptability of this kind of grouping to the attention of the Bills Office. I assume that the Chairman has taken on board the suggestion that we write to it formally. In this instance, three aspects that are unrelated beyond their being parts of the Bill have been lumped together for convenience rather than consistency. It is not acceptable or consistent with our work in scrutinising the Bill. It is not fair to the Minister, who has covered a significant amount of ground in a couple of minutes to justify his case and reject the Opposition's case. He has not been averse to accepting some Opposition amendments, but it is important that his reasons for rejecting them be teased out.

I will make a number of points on this wide-ranging plethora of amendments. The early amendments change the wording beyond its linguistic meaning. A strategic development plan places a greater requirement on an organisation than a statement of strategy does. A statement could be anything. For example, I am making a statement. It is such a broad term, it does not have the impact, onus or imperative of a development plan. It is not just a matter of streamlining the BBC — I did not follow the Minister's point — or, in a later amendment, differentiating the statement from the BBC's code of practice. Rather, it waters down the requirements placed on the bodies. Substituting five years for three years would water it down, as the former is a ludicrously long time for which to produce a statement or plan. Much can occur in five years. Taking the recent economic collapse, events occur so rapidly that it becomes difficult to keep up. Locking an organisation into a five-year plan would burden it, not ensure that it would work well.

The broadcasting charter is important and carries more weight than a statement. A simple statement almost invites contravention because of its broad nature. In regard to children's programming——

Can we discuss these matters separately?

We cannot; that is the point.

We can, if we so decide. We do not have to accept the groupings suggested by the Bills Office. At our last meeting we decided to discuss amendments separately.

We will discuss them separately.

What does Deputy Coveney propose to do?

I propose that we discuss amendments Nos. 174 to 178, inclusive, together. Otherwise, we would lose our train of thought.

Like Deputy McManus, I am unclear on what "statement of strategy" means. Everybody knows that in essence a development plan is a slightly broader version of a business plan that outlines the responsibilities of a broadcaster in addition to how the business is run. I am not hung up on a figure of three or five years but when a strategic plan is put in place, it should be the basis for progress in the ensuing period. A statement of strategy does not sound sufficiently comprehensive or binding as regards how an organisation should develop. I do not feel particularly strongly about these amendments but replacing a strategic development plan with a statement of strategy appears to water down the requirements on the corporation, particularly if it only needs to be done once every five years.

It is not intended to be a watered down requirement. The amendments deal with the remit of public service broadcasters. They amend a small number of sections but, as Deputy Coveney noted, it would be useful to address them separately. Following a significant increase in the licence fee in 2003, a commitment was made to produce additional programming. In the case of RTE, that has been very successful in terms of increased home produced programming.

For the forthcoming five-year period, RTE is working on a more sophisticated assessment of how it delivers on its remit and public service obligations which it can set out in a statement of strategy. This will move beyond a simple analysis of levels of activity or hours of programming in each business unit to develop a qualitative assessment of how the broadcaster meets its public service obligations and objectives in the quality of its programming. The overall statement of strategy for the five-year period will be complemented by annual reviews. The Minister and the Broadcasting Authority of Ireland will not be the only parties with a function in that regard because I envisage that the board and management of the public service broadcaster will conduct ongoing reviews. It is not something that is fixed or only visited once every five years.

The amendments address the overall framework of change that we are seeking to introduce to the definition of the remit and the assessment of the functions and performance of the public service broadcaster. The problem with the word "charter" is that it implies different contexts such as the BBC's understanding of the word. In Ireland's case, it could be argued that the charter is contained in the legislation setting out the remit of broadcasters. It is better, therefore, to use a different term to describe strategic development. As the public service broadcaster in our nearest neighbour, we tend to take our references from the BBC.

There is a sense of an inferiority complex in the Minister's argument. "Charter" is a perfectly valid term. One could have a children's charter or a charter for older people. The term is used in an Irish context. The idea that we adapt our approach because another country with a different television tradition uses the term amazes me. As a member of the European Union, do we have to check the terms used in each of the other 26 member states to ensure we do not use words incorrectly? "Charter" carries a certain degree of resilience that words such as "statement" do not. I am aware that the Minister is not about to accept my argument because he considers it pedantic but I am offended to hear this argument being made. Frankly, such an argument should not be used in respect of broadcasting legislation being passed by the Irish Parliament; it should be passed without reference to any other country.

I do not want to labour this point but, for me, a statement is a signal of intent. It is not something to which one would necessarily be held. A charter, however, sets out the rules by which one must abide. That is my understanding and what the BBC does is irrelevant. We speak the same language. A public service statement is only a signal of intent at the time it is made, whereas a charter sets out the rules to be followed. As politicians, we know the difference between commitments and statements. One is set out in a programme for Government, while the other is a Minister's signal of intent and can change within weeks. Therefore, I do not know why the Minister is bringing forward these amendments. We require a broadcasting or public service charter that sets out clearly the rules and parameters for broadcasters. A public service statement which does not even set out commitments is weak. We should be seeking clarity of commitment in public service performance when we devise new legislation. "Charter" is a clearer and less ambiguous term than "public service statement".

I am happy to discuss amendments Nos. 184 to 187 now if the Minister prefers.

I referred to the neighbouring jurisdiction not from any sense of inferiority but in recognition of its difference. That charter, in a sense, does not exist in legislation. The legislation we are providing is the charter for public service broadcasters. It is important to distinguish what we are providing here with the statement of strategy, which is an ongoing and evolving document that is a qualitative assessment of how it meets the public service remit.

That differentiation, although down to semantics, is valid. Within that, one could use the term "charter" in different contexts but I want to recognise that the legislation is, in a sense, the broad charter within which any public service broadcaster operates. It is the first time we are extending the legislation and giving it real detail, which is, in effect, a form of charter for the operation of the public service broadcaster. The statement of strategy is beneath that and brings in the qualitative assessment of some issues around what exactly we mean when we use the term "public service obligation" and what qualities we look to bring in. That fits within a statement of strategy better than a charter. It is more flexible and qualitative and although we are down to semantics, the amendments are worded on that basis.

The only problem with that argument is that the legislation is not a charter; it will be a piece of legislation called the Broadcasting Act. We could go on forever on this one.

We will move on. Do members wish to discuss amendments Nos. 180 to 190, inclusive?

Amendments Nos. 182 and 183 are important from my perspective. We have discussed amendments Nos. 183 to 187, inclusive, on the issue of "charter" versus "statement". On amendment No. 182, I know the Minister cares about protecting children with regard to advertising and broadcasting generally. He made this clear in opposition and he is again making it clear in terms of how he views irresponsible advertising with regard to junk foods, etc., in this legislation.

Somebody made a valid point that we spend much time and effort looking at advertising codes with regard to children but how much time do we spend talking about children's programming and what they watch? I know RTE has made an effort to increase the level of Irish-made children's programming. I am not sure of the figures for TV3, so I do not want to quote them. Some 22% or 23% of children's programming on RTE is now home-produced, be it produced in-house at RTE or by independent production companies in Ireland. It includes animation and interactive programming targeted at children.

We should aspire to encourage through legislation an increase in the home-grown programming that we make and broadcast for children. It makes the product more relevant to Irish children rather than when it is imported from the US or elsewhere. Putting a requirement that 30% of children's programming is to originate in Ireland — either produced by the corporation or independent producers — is not unreasonable.

I know there will be a cost implication as it is more expensive to produce home-grown programming but this is about prioritising the quality of children's television and replacing some of the easily available children's programming that is of lower cost with some home-grown material. It is about supporting programme makers in Ireland who are particularly good at making children's programming. We have a very successful animation industry which is producing short animated films for the world. However, we do not always give an outlet to those companies here in Ireland.

This is a combination of issues, the primary one being supporting home-grown production of children's programming, which we can and do well in Ireland, both by in-house productions and, particularly, by independent producers. RTE is already at 22% or 23% and we should push it to achieve a figure of 30%. Otherwise, if there is more financial pressure put on RTE, as will be the case due to falling advertising revenue, etc., all programming will be put under cost pressures. One area requiring parameters in the protection of home-grown programming is children's television.

I ask the Minister to consider the issue. If he does not accept the 30% figure, he should come forward with his own figure rather than leaving it up in the air for RTE to determine.

I feel very strongly that the Minister should reconsider his refusal to accept this amendment. It is one of the more important amendments being put forward in this debate. To a certain extent we tend to take children's programming for granted but it is one of the great contributions made by public service broadcasting. It is interesting to note the commercial broadcaster does not provide children's programming.

This is an area whose importance is recognised. Children watch more television than their parents and it is instructive for us to occasionally sit down with our children or grandchildren to see what exactly they are watching. Any time I have done this, I have been astounded at the poor quality of foreign programmes. Nobody underestimates the difficulties in children's programming as it must deal with different age groups and segments, but it is very important.

One of the great retrogressive moves in America was when children's programming was deregulated. Before this happened, we had series such as the very successful "Sesame Street", which was enormously influential and good. The quality of imported children's programming generally — I am not pinpointing RTE — tends to be pretty awful. I have limited experience of it.

This amendment anchors the issue of quality in children's programming. It would bring about a critical mass of 30%, and I would not give way on that proportion. That amount would be home-grown and whether it is in-house or independent is less important. It is important we have this critical mass embedded in our children's programming that should be home-grown and created by people who understand the community they are addressing. It should also be able to include aspects of Irish life, be it integration of different cultures or examples of social disadvantage, as well as entertaining children.

There is a touch of window dressing when one goes after breakfast cereals and forbids them from advertising while at the same time not being willing to secure the approach to children's programming, as this amendment does. I strongly urge the Minister to reflect on this as there is no doubt that because of current pressures on a corporation like RTE because of falling advertising revenue, it will be very hard for children's programming to withstand the heat.

If this is to be a charter, and if this is what we are doing in the Bill, the charter should begin by stating that children's programming is important. We do not state that. Second, it should state that such programming is so important and has such a cultural and social value for our children that we want to embed a 30% requirement for indigenous production to secure that type of quality children's programming. That is only a minority percentage. We know it can be provided because it is already provided by RTE. It should continue to be provided in the future. If we do not do this we all know what will happen. Commercial pressures will be so great that children's programming will suffer. That is my expectation, and I say it with no disrespect to anybody involved in television stations. It is just the way we are now.

I say to the Minister that this is a charter and that is how it should be described. In our charter, let us think about children in such a way as to secure good quality indigenous children's programming that reflects our values, and cultural and social requirements. I believe that good children's programming can do this.

I agree entirely with the Deputy that the provision of children's programming is a perfect example of one of the public service objectives for which we pay licence fees. What defines the sense of public service obligation is the willingness to fund non-commercial programming that has a social benefit. I cannot think of a better example of that than high-quality children's programming and I completely support that objective.

There are ways in which we can assure this. We can appoint members to the boards of RTE and TG4 on the basis that they consider that objective in their ongoing work with management and ensure it is met. I do not believe we should set percentage-specific targets into this legislation in respect of how that objective should be defined. In a sense, that would constrain boards and management in ways that may not be appropriate. It might not give them the same flexibility in their operations.

Having heard what the Deputies said, I may bring back one change or amendment on Report Stage that encompasses their concerns. I propose to amend subsection 101(2)(a) which calls for the statement of strategy to set out the nature and number of hours for children’s television programming, including programmes in the Irish language. I suggest we might amend that further, in order to differentiate between programming that originates from the corporation or from independent producers based in Ireland, and that which is imported. That would give a board, and the wider public, a clear sense that it understandings the obligation it has to provide children’s programming as part of its public service remit. It would make obvious the different approaches to Irish independent or in-house programming and to that which is imported. It would recognise the real benefit of programming that speaks to people in their own language, not only linguistically, in Irish or English, but by using references people can understand. That said, “Sesame Street” obviously does not do this but is still of considerable benefit. It is exactly in that regard that I am reluctant to restrict any board or corporation in how it operates.

I very much accept the intent, and I hope to make that further amendment on Report Stage thereby strengthening our resolve and the resolve of any board in encouraging home-produced children's programmes. I include animation along with other programming. Animation has a great role to play in children's programming and, if anything, we have underestimated the importance of home-produced animation. That is something I would like to see and, as Minister, I will certainly try to support and encourage its production.

I do not believe we would best achieve that by inserting percentages. It is better to allow a statement of strategy to make those calls.

That is a really disappointing response. We put constraints on the board in different sections in this Bill. We do this with advertising codes and by requiring a certain amount of money or a potential percentage of television revenue to be spent on independent productions. If we are not willing to lay down the ground rules for children's television, what are we doing? The Minister would agree that we are talking about a key element of public service broadcasting.

What has been said here is that the only way to ensure, through legislation, an acceptable percentage of home-grown children's productions is to put someone on the board who cares about children's programming. We are the policymakers, the legislators. If we want RTE to provide an acceptable level of home-grown public service broadcasting material aimed at children and, perhaps in the future, to provide an increased level of such material, then we should say so bluntly. One hopes it will be like the current approach towards the independent production sector which is well above the floor we set.

By not setting any floor we say a lot about our own priorities. I agree with the Minister that children's programming is the essence of public service broadcasting. How do we want to influence our children by means of the public service remit of RTE? Do we do this with home-grown programming that understands the Irish audience and the challenges that young people in Ireland face, with a changing culture and country, diversity and all those new situations? Public service broadcasting must respond to these issues. They will not be responded to by imported programming from the United States, Canada, Australia or anywhere else.

I am perfectly happy that the majority of children's programming be imported, out of necessity, for cost reasons. However, we must at least set a floor that would provide a minority of time for indigenous children's programming. RTE is pretty close to this anyway. We might set the standard and say that at least about 30% of all the programming on television for children on our public service broadcasting channels will be home-grown, tailored for Irish children and dealing with the challenges, issues, aspirations and dreams they have.

I know I say this too often to the Minister, but if he were on this side of the House this would have been his amendment. I do not know why he is not looking at this in a more open way. He says instead we should put someone on the board who cares about children's programming and make sure it happens that way. He says we cannot really interfere with RTE in this matter because it must run its own show. The Minister is the policymaker. This is the most important amendment with regard to children. In my view, it is more important than advertising codes. This is about the majority time that children spend watching television rather than the ten minutes in the hour devoted to advertising.

Sometimes the Deputy underestimates the importance of the board. It is right and proper that a board should take on real authority in working with management and policymakers and that it sees that public service requirements are met. I defend the importance of the board and of those board appointments that will bring about a real and active role in implementing public service obligations.

As the Deputy said, it is true that the definition of peak hour viewing for children is between 3 p.m. and 5 p.m. on weekdays. During those hours RTE, as an example of a public service broadcaster, exceeds the 30% level of programmes produced indigenously.

The measures and tests of qualitative values are crucial. It is not easy to determine percentages on how objectives are met. The quality of programming is also important and programmes of a high quality can be imported. I want to give flexibility to the management and the board to meet broad public service objectives. The legal difficulty with setting such limits is that one encounters European Union legislation mandating Irish-produced programming. We have overcome that with the introduction of the broadcasting fund which applies to all broadcasters and conforms to state aid rules, and we amended it to strengthen it to allow greater support for indigenously produced programming. I have tabled amendments to extend this to the area of animation.

There are ways we can do this effectively, legally and appropriately to give support to independent broadcasters and editorial flexibility to corporations, which is still important. We cannot legislate for a programme schedule here and we should not try to do so. We must set broad parameters. Anybody listening to this will hear a clear message from public policy makers on their desire for children's programming. It is appropriate for that to be done through a statement of strategy and a requirement for people to delineate the number of hours that are home-produced versus those imported, on which a further amendment will be tabled. It is important to allow the statement of strategy to reflect the policy objectives and how they will be reached.

Nobody wants to interfere with the board's autonomy. However, this legislation sets extremely restrictive requirements on advertising and the amount of time allocated to it, down to the number of minutes of advertising in an hour. The reach of the Minister is very deep in one area, but he is holding back in an area where people wish to see a vibrant involvement, namely, that of indigenous programme making for children.

The Minister raised the question of the potential difficulties we may face with the European Commission. When there is an impasse or disagreement on a particular matter the European Commission is pulled out of the cupboard and we say, "they will not like it so it cannot be done". That may be the case but I would prefer to read in writing exactly what we are not allowed to do because my knowledge on the issue is not extensive. There are protections and safeguards in other countries, particularly in non-English speaking countries, regarding programming. Perhaps the Minister could furnish us with information on how the European Commission would prevent us implementing this kind of safeguard before Report Stage.

I wish to make a brief point on how other European countries deal with this issue. One reason we need an amendment such as this in Ireland is because — to be politically correct — our most commonly spoken language is English. We have the luxury of importing programmes from Australia, the US and Britain. We are in a different position from France, Spain or Italy and other European countries because their children's programming, of necessity in terms of language, is often home-grown. Otherwise it must be translated or captioned.

We may speak the same language as people in countries which make a great deal of programming but that is an argument in favour of including the amendment Deputy McManus and I are proposing, which will ensure that in difficult financial times easy decisions on moving from expensive home-grown children's programming to purchasing cheaper options are not made.

The Minister will not accept this amendment; that is regrettable and I ask him to look at it again. I withdraw the amendment and will reintroduce it on Report Stage.

Much of the children's programming Deputy McManus referred to earlier involves imported animation. It does not always come from an English speaking country and can be dubbed. Animation is expensive to produce but has the significant opportunity of being exportable. We have the potential to develop an animation industry which could be sold elsewhere. There has not been sufficient commissioning of such animation. Perhaps the public service broadcaster has taken too short-term a view on the initial cost per minute of animation and does not see the longer shelf life of such a product and the potential for it to be sold elsewhere. This is a prominent area in children's programming and more should be done, but it is not right to set percentages because editorial and budgetary freedoms must remain to allow it to be developed in an effective manner.

Regarding European Union regulations, laws are allowed on independent production related to language promotion, which provides a safeguard. However, there are regulations on restricting economic activity on a geographic basis. In the past we sought mandatory provisions on Irish music but encountered legal difficulties with the European Union. I will ask my officials for a note on that.

The Bill, as it is drafted, does not seek a listing of hours to differentiate between home-produced and imported programming, and I will table an amendment on this to ensure a clear recognition of the difference and include it in any statement of strategy.

Can we move on to discuss amendments Nos. 240 to 242?

I tabled amendment No. 240 because there are commitments and requirements in this Bill on funding and public service broadcasting. We have an unusual dual funding situation available to RTE; TG4 is funded in a different way and is a separate issue. I am proposing a mechanism where commitments made by or required of the corporation are in place to meet its public service objectives and also to ensure public funding is adequate.

One concern, which was alluded to by Deputy Coveney during the last debate on this Bill, is that in an economic period where advertising revenue is becoming scarcer, RTE could use its dominant position to create difficulties for competition. It is important to have a mechanism to ensure oversight from year to year to determine whether the dual system of funding is meeting public service objectives.

My mind is on the previous debate but I understand it relates to this issue also in terms of service commitments. In difficult commercial times it would be easy to meet certain statutory obligations in terms of the percentage of children's programmes to be broadcast by lowering quality. One could easily meet the targets through broadcasting very poor programming when the real objective is to ensure high quality programming.

On amendment No. 240 tabled by Deputy McManus, section 108 requires RTE and TG4 to maximise revenues from their commercial endeavours and ensure all direct transactions between their commercial endeavours and public service objectives are made on an arm's length basis, that is, on commercial terms. Subsection (3) provides that the compliance committee may, at the direction of the Minister, report on compliance by RTE or TG4 with these "revenue maximisation and arm's-length" provisions. In essence, the section imposes a continuing duty on RTE and TG4. Sections 108 and 109 provide the means for investigation into whether such a duty has been complied with, while sections 123 and 124 provide the Broadcasting Authority of Ireland and the Minister with sufficient discretion to consider this issue in setting the level of public funding for RTE and TG4. Accordingly, I do not accept the Deputy's amendments. We are moving into difficult economic times, as is clear from the Revenue figures produced yesterday and, probably, the jobs figures to be announced later today. In the circumstances, there will be increasing difficulties in the broadcasting sector which is experiencing problems due to the development of web based advertising and the loss of advertising revenue, as well as the increased diversity of platform stations available.

Last week I referred to the audiovisual media services directive. The obligations outlined in the Bill will ensure a position of dominance and advantage enjoyed by a public service broadcaster in having licence fee revenue as well as commercial revenue cannot be used in an abusive manner. To a certain extent, we are creating a level playing field, whereby a new broadcasting authority can, via the mechanisms of the Bill, ensure a position of dominance is not used against other broadcasters. There are other mechanisms also. I refer to the debate that took place last week as regards the Competition Authority investigating pricing of advertising or other practices seen as anti-competitive. One of the reasons we have to get the Bill through and have the authority in place is to provide reassurance for other broadcasters that a position of dominance will not be used to see them unfairly treated.

Perhaps the Minister might clarify an issue for me. As I read section 108, the Minister can ask the compliance committee to prepare a report for him on the requirements of subsection (2) but not subsection (1). How can the oversight provided for be monitored? Perhaps the Minister might advise if this is provided for in another section. The section provides that a report can be compiled only on subsection (2), which means one cannot be done on subsection (1).

I will check that matter with my officials and come back to the Deputy with further information. My initial instinct is that subsection (1)(a) provides that a corporation will have to operate in an efficient manner so as to maximise revenues. There would be related concerns, for example, in the advertising area in which one would price below the proper market rate to engender competitive differences. Ultimately, that activity comes within the remit of the Competition Authority to ensure there are no breaches.

I may resubmit the amendment on Report Stage.

There are others dealing with similar issues.

Amendment agreed to.

I move amendment No. 175:

In page 100, subsection (1), line 44, to delete "a strategic development plan" and substitute "statement of strategy".

Amendment agreed to.

I move amendment No. 176:

In page 100, subsection (2), line 45, to delete "strategic development plan" and substitute "statement of strategy".

Amendment agreed to.

I move amendment No. 177:

In page 101, subsection (2), line 1, to delete "plan" and substitute "statement".

Amendment agreed to.

I move amendment No. 178:

In page 101, subsection (3), lines 3 and 4, to delete "strategic development plan" and substitute "statement of strategy".

Amendment agreed to.
Section 99, as amended, agreed to.

I move amendment No. 179:

In page 101, subsection (2), between lines 19 and 20 to insert the following:

"(d) the impact of the proposal on other commercial activity within the market,”.

This amendment relates to the sectoral impact assessments to be made by the authority. The principle is similar to that to which Deputy McManus referred. The amendment seeks to add a new paragraph to provide that the authority would consider the impact of a proposal on another commercial activity within the marketplace. Paragraph (c) refers to the impact of a proposal on related markets and such matters as the authority may decide. However, it does not specifically refer to commercial activity within the market. I am trying to improve the section to re-emphasise the point in legislation that commercial decisions taken by RTE, particularly in the current climate, will impact on the market because RTE is such a dominant player. This needs to be considered by it when making commercial decisions. My amendment would not change the section to a great extent but improve it somewhat.

The amendment proposes that when the Broadcasting Authority of Ireland is carrying out a sectoral impact assessment of the activities of a public service broadcaster under section 100, it should consider "the impact of the proposal on other commercial activity within the market". I agree with the Deputy's intent. However, it is already adequately dealt with in the existing text of the section. In particular, subsection (2), paragraphs (a) and (b), requires the Broadcasting Authority of Ireland to consider “the extent to which the proposal impacts on existing sectoral services and the impact of the proposal on sectoral development, innovation and assessment”. Accordingly, the Deputy’s amendment is unnecessary. The word “sectoral” refers to competition across the sector and other broadcasters.

That is not stated in the Bill. With all due respect, that is an interpretation. What I am talking about is removing the ambiguity. Commercial decisions taken within sectors have an impact on commercial activity within the marketplace for other broadcasters. However, I understand what the Minister is saying and one could certainly read it as he interprets it as covering what I am trying to achieve. Certainly, there would be no ambiguity with my amendment, whereas there is with the existing text. That is my concern. We do not disagree on the principle underpinning the subsection but the wording of it is not clear. If it was, it would not have prompted this amendment. I did not read this section as clearly as the Minister interpreted it.

The point at issue is one of interpretation and not intent. We will examine the wording between now and Report Stage. There is not a point of difference. It is a matter of legal wording as to how the word "sectoral" is defined and we will examine that.

On that basis, I will withdraw my amendment.

Amendment, by leave, withdrawn.
Section 100 agreed to.

I move amendment No. 180:

In page 101, subsection (1), line 28, to delete "broadcasting charter ("broadcasting charter")" and substitute "statement".

Amendment agreed to.

I move amendment No. 181:

In page 101, lines 31 to 43 and in page 102, lines 1 to 3, to delete subsection (2).

Amendment agreed to.

Amendments Nos. 182 and 183 cannot be moved.

Regarding those amendments, I certainly want to press amendment No. 182.

Amendment No. 182 cannot be moved because amendment No. 181 has been agreed. Amendments Nos. 182 and 183 overlap, are addressed in the same part of the Bill and must be discussed together, otherwise they would fall with the decision on amendment No. 181, which has been agreed.

Amendments Nos. 182 and 183 not moved.

I move amendment No. 184:

In page 102, subsection (3), line 4, to delete "broadcasting charter" and substitute "public service statement".

Amendment agreed to.

I move amendment No. 185:

In page 102, subsection (4), line 7, to delete "broadcasting charter" and substitute "public service statement".

Amendment agreed to.

I move amendment No. 186:

In page 102, subsection (4), line 9, to delete "broadcasting charter" and substitute "public service statement".

Amendment agreed to.

I move amendment No. 187:

In page 102, subsection (5), lines 11 and 12, to delete all words from and including "broadcasting" in line 11 down to and including "charter" in line 12 and substitute the following:

"public service statement, or any revision to it cause a copy of the public service statement".

Amendment agreed to.
Section 101, as amended, agreed to.

I move amendment No. 188:

In page 102, lines 13 to 17, to delete subsection (1) and substitute the following:

"102.—(1) A corporation shall, by 31 January in each year, prepare an annual statement of performance commitments, in accordance with—

(a) its objects,

(b) any extant statement of strategy prepared under section 99, and

(c) any extant public service statement prepared under section 101,

and including the activities to which the corporation intends to commit in that financial year and associated performance indicators.

(2) An annual statement of performance commitments prepared by a corporation undersubsection (1) shall address, inter alia

(a) original children’s programming, including animation and children’s programming in the Irish language, to be broadcast by the corporation,

(b) Irish language programming to be broadcast by the corporation,

(c) science and technology programming to be broadcast by the corporation,

(d) magazines and books to be prepared, published and distributed in pursuance of the corporation’s public service objects, and

(e) the recorded audio material to be compiled, published and distributed in pursuance of the corporation’s public service objects.”.

Amendment agreed to.

I move amendment No. 189:

In page 102, subsection (2), line 19, to delete "commitments" and substitute "performance commitments".

Amendment agreed to.

I move amendment No. 190:

In page 102, subsection (2), line 20, to delete "subsection (1)” and substitute “subsection (1), or a summary thereof”.

Amendment agreed to.
Section 102, as amended, agreed to.
Sections 103 to 105, inclusive, agreed to.

Amendment No. 191 has already been discussed with amendment No. 31. How stands that amendment?

I move amendment No. 191:

In page 105, lines 1 to 5, to delete subsection (1) and substitute the following:

"106.—(1) A corporation may broadcast advertisements, broadcast acknowledgement of sponsorship, may fix charges and conditions for such broadcasts in fixing such charges shall ensure that all charging practices are conducted strictly in accordance with the terms ofsection 108 of this Act.”.

I will withdraw it and resubmit it on Report Stage.

Amendment, by leave, withdrawn.

I move amendment No. 192:

In page 105, lines 8 to 22, to delete subsections (3) and (4) and substitute the following:

"(3) Subject to the requirements ofsection 41(2), a corporation in providing a broadcasting service under this Part shall, subject to the approval of the Minister following consultation with the Authority, fix—

(a) the total daily time for broadcasting advertisements, and

(b) the maximum period given to advertisements in any hour.”.

Amendment agreed to.

I move amendment No. 193:

In page 105, subsection (5), line 24, to delete "with the" and substitute "with a".

Amendment agreed to.

I move amendment No. 194:

In page 105, subsection (5), line 25, to delete "a corporation" and substitute "the corporation".

Amendment agreed to.

I move amendment No. 195:

In page 105, subsection (5), line 27, to delete "a corporation" and substitute "the corporation".

Amendment agreed to.

I move amendment No. 196:

In page 105, subsection (5), line 29, to delete "a corporation" and substitute "the corporation".

Amendment agreed to.
Section 106, as amended, agreed to.
Section 107 agreed to.

I move amendment 197:

In page 106, subsection (2), line 30, after "length" to insert "and on commercial terms".

Is this amendment which has already been discussed agreed?

When was it discussed?

It was discussed with amendment No. 31. If the Minister wishes to make a brief comment on it, he may do so.

My amendment No. 197 has the same intent as Deputy Coveney's amendment No. 198. I am advised that legally the words we have proposed to insert after the term "at arm's length", those of "and on commercial terms" are appropriate language. I hope the Deputy will agree that it carries the same intent as his proposed wording "and carried out in line with market practices".

On a point of information, is the term "made at arm's length" a legal one?

This process has gone on for a number of years in consultation with the commission and it is satisfied with this wording. The subsection is strengthened by the inclusion of the words "and on commercial terms".

I agree with the Minister's wording "and on commercial terms" and it is clear, but the wording "at arm's length" is almost slang in the legislation. To deal with something at arm's length is to——

What does that phrase mean?

At a certain distance.

What does it actually mean in legal terms?

To deal with something with a certain independence and distance.

Should it not be included in the definition section?

Subsection (2) states "All transactions or arrangements entered into by a corporation as between the activities arising from ... its public service objects, and ... its exploitation of commercial opportunities object ... shall be made at arm's length." In other words, there should be a separation between its dealings in terms of meeting its public service objectives and its exploitation of commercial operations. We are getting into the semantics of "at arm's length", but it is saying, effectively, there must be separation between the two — it must be made at arm's length separation.

None of us knew that was the meaning until we got that definition. That was a concern. If that is what the term means, well and good, but we could improve that term. This is an important issue as whether such arrangements are made independently and on commercial terms. A different wording might be clearer.

Perhaps this is anon sequitur but I am curious about this issue. Riverdance was an in-house production which then went on to make enormous amounts of money for its creators. In this instance, could such a situation arise again, or does this provision have any bearing on it?

That relates to a slightly different issue around where the copyright resides. I understand the original music and other rights did not reside in-house. I am speaking from memory rather than being certain about this. That was the reason for its particular success and we are seeking here to still provide for such flexibility in the future in order that independent production companies can work with the public service broadcaster and still exploit some of the intellectual property that is developed. The broad intent here——

That would apply to independent producers. Riverdance was an in-house production. It was not produced by the independent sector.

It was an independent production in that Mr. Bill Whelan came in to produce the music and it was done on an independent production basis and ownership of it was independent as opposed to it being owned by the corporation.

It was done at leg's length.

That is absolutely clear now.

Amendment agreed to.
Amendment No. 198 not moved.
Section 108, as amended, agreed to.

I move amendment No. 199:

In page 107, subsection (7)(a), lines 32 to 34, to delete all words from and including “examination,” in line 32 down to and including “Minister” in line 34 and substitute “examination”.

Amendment agreed to.

I move amendment No. 200:

In page 108, subsection (9)(b)(ii), line 7, to delete “opportunity” and substitute “opportunities”.

Amendment agreed to.
Section 109, as amended, agreed to.

I move amendment No. 201:

In page 109, between lines 5 and 6, to insert the following subsection:

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

(a) The amount of the subsidy;

(b) the intensity of the subsidy in the context of the broadcaster’s total revenues;

(c) the arrangements in place to ensure the maximisation of revenue to offset the requirement for subsidy;

(d) the arrangements in place to ensure the public broadcaster carries out its commercial activities in line with market practices.”.

This is an amendment discussed with an earlier grouping.

If I may, I would like to make a brief comment on it. The Minister will know what I am trying to achieve in this amendment. This section deals with reports and information. I would like to ask the Minister to consider the proposed new subsection which provides that "the Authority shall prepare a report analysing the arrangements for the funding of public service broadcasting in a representative section of EU Member States with particular reference..." and outlined in it are some of the aspects it should consider. Furthermore, the authority should do this every three years.

This is important because we should take account of best practice in this area in other European countries where mistakes have been made and of progress that is being made. We should consider the amount of the subsidy, the intensity of the subsidy in the context of the broadcaster's total revenues, and the arrangements in place to ensure the maximisation of revenue to offset the requirements for subsidies. In other words, we should look at the funding of public service broadcasting across the EU to ensure we have got it right. We should assess that every three years, or every five years if the Minister prefers. We should not go it alone on this, however, and decide that we know best how to fund public service broadcasting when many other countries are debating the same issues. The authority should be required to analyse what is happening across the European Union, and potentially further afield, in terms of new proposals and ideas to fund public service broadcasting better. At a later stage, we will discuss whether to do that through a television licence fee or perhaps in some other way.

It would be useful for the Minister and this committee to get a report every so often on how we fund public service broadcasting compared to other EU countries. It makes sense that every three years we should be brought up to speed with best practice in other countries, or what is being discussed there. On that basis, I hope the Minister will accept this amendment, although we should not ask the authority to produce reports on everything. It has a significant burden of work, but this report would be worth doing every three or five years.

Section 124, which requires the broadcasting authority of Ireland on an annual and five-year basis to consider the adequacy or otherwise of public funding, brings in some of that international comparison the Deputy is seeking. He will see that on page 125, section 9(4) states that in carrying out such reviews, the authority should take into account several different things, including developments in public service broadcasting internationally. Therefore there is a mechanism by which international developments can be taken into account. There are also regular communications from the European Union including such comparisons, so the information is available. I am satisfied the section's requirements provide the authority with the means to make such comparisons.

Perhaps I am not getting my point across properly, but this is not about the authority — it is about the Minister being informed. The authority needs to inform itself of what is happening internationally, but this is about a requirement to provide information to the Minister who will make the decisions on this. The authority does not make the decisions, it implements them. That is why a report would be an interesting focus of debate for this committee, as well as for the Minister and his Department, in drawing conclusions about whether to update our structures to fund public service broadcasting.

Section 124(5) states that the authority will present this report to the Minister, while subsection (6) states that the Minister will publish a response to the authority and place it before the Houses of the Oireachtas, so the Minister is involved. To do it otherwise would be to put the cart before the horse. It is appropriate to give the new authority real powers in this area. It should connect to the Minister and the Oireachtas, but it should be done on that basis. The report, which includes those details of international development comparisons, is presented to the Minister and a response comes from the Minister. That is a better way of doing it, rather than getting the Minister in at the start of the process.

I agree with that. The Minister is correct in saying that under the terms of section 124 he is required to respond to the authority's recommendations, but this is about the adequacy or otherwise of public funding to enable the corporation to meet its public service objectives. My understanding of section 124 is about the adequacy of funding that is coming in, rather than the structure around how it is collected, in addition to the percentage difference between commercial advertising revenue and a public service broadcasting fund that is collected. While it would be useful to produce an annual report for the Minister on the adequacy of the income, I am primarily concerned with how we collect it, best practice, who pays and how much.

My understanding is that in the annual and five-year review periods there is every provision for the Minister and the Oireachtas to monitor not just the ability of the corporation to fund itself, but the effect on the wider broadcasting industry. That process allows for the Minister or the Oireachtas committee to have an input and response which take into account those wider considerations, including international comparisons to other jurisdictions.

On that basis, I will withdraw the amendment. There is much in what the Minister said, so I will review the matter and, if necessary, reintroduce it on Report Stage if it is not fully covered.

Amendment, by leave, withdrawn.
Section 110 agreed to.

I move amendment No. 202:

In page 109, between lines 13 and 14, to insert the following subsection:

"(3) A corporation may enter into an arrangement with a public service broadcaster for the reuse with or without charge by the public service broadcaster, in pursuance of its public service objects and functions under this Part, of items contained in any archive or library maintained by the corporation, such charge not to exceed the estimated cost of the search and retrieval of such items.".

Section 111 sets out the rights of access by third parties to broadcast archival material held by RTE and TG4. Subsection (3) requires RTE and TG4 to develop schemes to allow third parties to re-use broadcasting archival material held by RTE and TG4. Subsection (5) provides that any scheme under subsection (3) may specify more favourable terms in respect of programme material re-used for the purpose of Irish-language broadcasting.

Amendment No. 202 develops the section further by providing that public service broadcasters may enter into arrangements among themselves to share archival material at cost, but only in pursuit of their public service objectives. This is intended as a limited mechanism to enhance co-operation between public service broadcasters in delivering on their mandates.

Is that purely between the different broadcasters?

Primarily TG4 and RTE.

What happens if TV3 wants to avail of archival material for a news programme?

It is done separately under a different Act. This provision purely relates to the two public service broadcasters in question.

Does it affect the public service broadcaster that has the material?

RTE would be the primary one.

Yes, but is the Minister saying that the person seeking it — the petitioner looking for the material — has to be a public service broadcaster? Is it solely between RTE and TG4?

This section concerns them.

Is it just the two of them?

Does the term "a corporation" not refer to TV3 also?

It could include an Oireachtas channel or a non-commercial film channel with a purely public service remit.

I thought the definition "a corporation" included TV3, but it does not.

In the legislation it is TG4 or RTE that is defined as a corporation.

Amendment agreed to.

I move amendment No. 203:

In page 109, subsection (5), lines 25 and 26, to delete "the corporation" and substitute "a corporation".

Amendment agreed to.
Section 111, as amended, agreed to.

Amendments Nos. 204 to 209, inclusive, 217, 222, 223 and 227 to 230, inclusive, are related and may be discussed together. Amendment No. 205 is an alternative to amendment No. 204. Amendment No. 223 is an alternative to amendment No. 222. Amendment No. 228 is a technical alternative to amendment No. 227. Amendment No. 230 is a technical alternative to amendment No. 229.

Do we move the amendments within the group, starting with amendments Nos. 204 to 209, inclusive?

It makes this whole thing a bit pointless, does it not?

I call on Deputy Coveney.

I move amendment No. 204:

In page 110, before section 112, to insert the following new section:

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

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

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

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

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

(a) multi-annual commissioning;

(b) transparency in respect of each category of rights;

(c) timetable for contractual negotiations;

(d) matters relating to duration and exclusivity of each category of those rights;

(e) arrangements adopted in accordance with the code for demonstrating compliance with it.

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

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

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

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

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

This amendment concerns the code of fair trading practices, including the relationship between the corporation and independent production companies, as well as fair trading within the wider broadcasting sector. In particular, there has been intensive lobbying on the rights issue, with which the Minister will be familiar, in terms of primary rights to programming and, more importantly to independent production companies, secondary rights. Under section 112(5) in amendment No. 204, I propose to add two new paragraphs so that a code shall include reference to a corporation's approach to "matters relating to duration and exclusivity of each category of those rights" and "arrangements adopted in accordance with the code for demonstrating compliance with it".

There is a view in the industry, especially among independent production companies, that their ability to negotiate with RTE, for instance, needs to be strengthened so that an equal relationship is laid out in a code of fair trading practice when negotiations take place on issues such as the value of rights to certain programming and the split in terms of decision making or the value of secondary rights. There are a number of reasons this is the case, including the fact that RTE is such a dominant player in Ireland. If an independent production company wants to have its programme aired, it has few options apart from RTE, TV3 and possibly TG4. Essentially, because of its market dominance the big gig seems to be to get on RTE, and therefore the negotiations on rights and payments are one-sided in terms of who holds the power.

Many of the people lobbying for this amendment are anxious to stress that their relationship with RTE is a good one. At the same time, however, they want to have a code that would improve their ability to negotiate secondary rights issues in particular. Producers are more likely to market a programme aggressively from a secondary rights viewpoint than RTE is because they are the creators of the programme. From a secondary rights point of view, RTE is less likely to market such programmes to foreign broadcasters, for example. My amendment seeks to improve the current situation. The new paragraph (e) would require participants in that code to demonstrate their compliance with it annually.

My amendment is based largely along the same lines. I welcome the idea of fair trading practice, which is an important safeguard. It will set down rules, which are immensely important in ensuring there is fair play and the system is not exploitative.

I have concerns on two counts, however. One is the issue of rights, which was referred to earlier. This matter must be addressed. The independent sector has made a strong case about rights. It seems impossible to justify a situation, which currently pertains, whereby a person cannot assert certain rights in terms of the spin-off or future of his or her product. I hope this Bill will open up opportunities in this respect. It is cutting off one's nose to spite one's face if one has untapped potential. If RTE commissions a programme or a series, it has the rights, so the person who created the programme or series cannot develop the product's potential. Perhaps there is no potential as far as RTE is concerned, but the person or company that made the film is much more personally engaged in it. An author will fight hard to maintain copyright of a book because of the potential for plagiarism. The worldwide phenomenon of Riverdance, for example, may well not have happened but for such rights being in force. If it had any sense, RTE would recognise that loosening that kind of arrangement may yield future benefits, both financially and in terms of prestige. It is an important issue for the creator of a programme to be able to develop further.

The other issue that concerns me, although this amendment does not deal with it specifically, is that within the dominant player, RTE, there are protections and rights for people working in broadcasting that have been established through union representation to ensure people are not exploited. That is a valuable strength RTE has. Apart from the minimum wage, we need to consider certain safeguards to prevent eager young people from being exploited in the broadcasting sector. The possibility for exploitation exists so we should establish in the fair trading mechanism that the independent sector is conscious of its responsibilities in that regard. I am not saying it is unaware of such responsibilities but such safeguards should be part of the equation. While the growth of the independent sector is welcome, this matter is important nonetheless. It is important to consider this issue in the context of a code.

I do not disagree with the broad points made by both Deputies. I sense that there is agreement among us, as politicians, that there is a need for a stronger and more effective independent production sector. We are all concerned about the fact that there is an imbalance in the context of the commercial arrangements that would apply between RTE which has such financial clout and the independent production sector. In introducing this new code we are seeking to put in place a mechanism that will provide for some level of redress in that regard.

I accept Deputy McManus's point on the development of an independent production industry which would be of a certain scale and in respect of which fair and proper conditions of employment would apply. We do not want a weak independent production sector which would consist of a large number of small companies which would try to survive on a day-to-day basis and which would be characterised by people being obliged to work on short-term contracts and endure poor conditions of employment.

Those who make policy appear to accept that the emergence of independent producer-broadcasters has led to an increase in quality and resulted in the introduction of new creativity and innovation to the broadcasting sector. I am of the view, therefore, that the introduction of a code of fair trading practice is appropriate. The issue of rights is crucial in the context of that code. I am concerned about upholding the rights of independent producers to have a certain ownership of the fruits of their creativity and the output for which they are responsible. The current system, under which such rights do not easily transfer to the originators of material, should not be allowed to remain in place. The intent behind section 112 is that the authority will, in consultation with the Minister, the corporation — RTE and TG4 — and the independent production sector, provide clear guidance on commissioning rights and contractual arrangements.

Amendments Nos. 206 to 209, inclusive, in my name and amendments Nos. 204 and 205 in the names of Deputies Coveney and McManus, respectively, are related. The latter amendments would entail a restatement of the entire section. While advocating the retention of the main structure of the section, they propose that some of the sub-clauses be recast.

Amendment No. 207 in my name proposes a change that is reflected in the Deputies' amendments. This change will require RTE and TG4 to address in their codes issues in respect of duration and exclusivity regarding the various categories of rights they intend to acquire. The amendment is specific in directing the authority to act in a particular way when establishing the code. We want it to consider the rights issue and make provision for fair practice and protection for the small but growing independent production sector. It is appropriate that this matter should be addressed by the public service broadcasters in setting out their codes.

Both Deputies suggest shorter timeframes for broadcasters in developing their codes and for the BAI in issuing guidance on the format of the codes. In amendment No. 206 I propose to reduce, from 18 months to 15, the timeframe for corporations to develop their codes. I am of the view that these timeframes are appropriate to what is a complex and difficult issue. Amendments Nos. 208 and 209 are designed to bring further clarity to the text.

The amendments tabled by Deputies Coveney and McManus propose certain changes with which I do not agree. These include transparency in respect of amounts paid and procedures for review and compliance. They also suggest procedures for dispute resolution be subject to approval by the parties involved, as well as the Minister. I do not agree that the codes should be specific as to amounts to be paid. In the light of the complexity of the product involved, I argue that is best left to market negotiation between the parties. Adequate procedures for review are contained in subsections (9) and (10) of section 112.

The question of whether the dispute resolution procedures provided for in a code are suitable and adequate is one for the Minister and the BAI, in consultation with interested parties, to decide. However, I argue it is not a matter that should be subject to the veto of interested parties. In such circumstances, I do not propose to accept amendments Nos. 204 and 205. I hope the amendments in my name take on board and give effect to certain of the proposals brought forward by the Deputies.

We are putting in place the correct level of legislative direction, while also granting the authority and interested parties flexibility with regard to how the code will be drafted. Past experience with such codes indicates that legislation should not be overly prescriptive and that we should empower those involved to introduce the changes we wish to see made. Amendments Nos. 206 to 209, inclusive, achieve this.

On amendment No. 207, provision is made in the Bill to ensure the acquisition of rights is included in the code. However, the amendment then states the corporation, that is, RTE and TG4, shall "address the arrangements it proposes to adopt in respect of the duration and exclusivity of the various categories of rights it intends to acquire". The corporation will, therefore, remain in a position to state what it intends to do. This does not represent progress. If those at RTE or whomever state that they like matters as they stand, the corporation will have fulfilled its obligation under the law. Even if the phrase "fair arrangements" was included in the Bill or if a policy direction was given to the corporation, the position would be different. However, all the legislation does is direct that it be written down. That hardly deals with the central issue we have raised, with which the Minister clearly agrees.

The Deputy's amendment recognises that "It is the duty of a corporation to prepare and publish, within 12 months of the passing of this Act, and every fourth year thereafter, a code of fair trading practice (in this section referred to as a "code") setting out the principles that it shall apply when agreeing terms for the commissioning of programming material from independent producers". We are seeking fair trade practices between the corporation and the independent production sector.

I agree that the corporation should be required to set out its intentions. However, I am also of the view that it should be given a policy direction. As it stands, the legislation merely states the code must be set out. There is nothing to indicate that action must be taken to encourage change.

The Deputy's amendment also states the authority shall prepare and issue guidance to the corporation on the format of a code. Therefore, guidance will be given by the authority but responsibility for the code will lie with the corporation.

There is nothing in the Bill to prevent the authority from stating matters are fine as they stand. The authority can inform the corporation that it must present the code in written form but that it is satisfied with what the corporation is doing.

There appears to be agreement among policymakers on the need to introduce a code which should address issues such as the acquisition of rights. The authority will be obliged to consult the Minister on the guidance to be given to the corporation on the format the code should take. The guidance from me and I presume from any of my successors, regardless of the parties they might represent, would be to provide strong powers in respect of the acquisition of rights. However, I am of the view that, as will be the case under the legislation, it is better to allow the details to be worked out by those involved.

I do not understand how my opinion or that of the Minister or anyone else could be of relevance. There is a difficulty with regard to rights because the current system appears to be unfairly weighted in favour of the corporation. The position must be changed. In that context, I am proposing the adoption of a proactive requirement. If the phrase "fair arrangement" was included in the legislation, it would indicate to the authority, the corporation and everyone else involved that any arrangement put in place must be fair. To put it bluntly, the current system is not fair.

That is why we have determined to call it the "code of fair trading practice".

Fair trading is different. It may include that to which I am referring but I would have thought the Minister would be obliged to deal specifically with this matter which has been raised on many occasions and which is central to broadcasting in its current form. It is central to the way broadcasting is arranged. Previously, it was very straightforward because there was not a strong independent sector. It is an issue because there is growth in that sector.

It is more of an issue as we enter more difficult times commercially than over the past five or ten years. We cannot have a response from a corporation, which merely further squeezes or excludes independent production to meet budgets. Such a code must be strong. Later amendments address the broad nature of the relationship. The simple clear message from all sides politically is that we want the independent sector protected and developed. The measures in the section provide for that.

I did not refer to that. This is a bigger issue. I referred to the issue of rights. This subsection relates to the duration and exclusivity of rights. It is a legal matter, which is a problem currently. The independent sector validly complains that there is not enough flexibility and insufficient potential is being realised because the system is closed.

Section 2 states the corporation must consider the guidance received and "shall prepare and submit for approval to the Minister". It is correct that the corporation is involved and has rights in how it works for them, which must be taken into account——

It must be fair.

Yes, it must be fair to both sides. I am confident that the provisions we are initiating will, for the first time, allow for such a code and will strengthen the right to the acquisition or holding of rights by the independent production sector. The legislation sets that out properly, particularly in amendment No. 207 which is more specific in terms of what exactly the code must do in terms of meeting the rights requirement.

I support the concern expressed by Deputy McManus on amendment No. 207 which deals with the nub of the issue, namely, the duration and exclusivity of various categories of rights. Subsection (5), comprising paragraphs (a), (b) and (c), states that a code shall include reference to a corporation’s approach to the acquisition of rights. The Minister is adding that in meeting the requirements of subsection (5)(b), the corporation shall address the arrangements it proposes to adopt in respect of the duration and exclusivity of various categories of rights it intends to acquire. The corporation will be developing the code, albeit having consulted with the Minister and independent producers, under section 112(2).

In the production of the code of fair trading practice in this area, a more definite reference is required to the concerns of the other half of the negotiation process, namely, the independent producers. Perhaps we could improve this provision by stating in the Minister's amendment that in meeting the requirements of subsections (5)(b) and 112(2), the corporation shall address the arrangements. In other words, there would be a requirement to consult the Minister, the corporation and independent producers, or such persons representing them. We are seeking a specific reference that the independent sector will have a say in the final outcome in terms of the code of practice that will be produced. The Minister referred to subsection (5)(b) but has not referred to what I consider to be a more important element, namely, that the independent producers, or those representing them, must be involved in this area. This is the specific concern expressed to us by the independent sector.

That is provided for in section 112(2), which states the authority must consult the Minister, the corporation and independent producers. There is an obligation to consult the independent producers.

The Minister specifically chose to reference subsection (5)(b) in his amendment — that the corporation shall address the arrangements it proposes to adopt in respect of the duration and exclusivity of various categories of rights it intends to acquire. If he does this, he should also refer to section 112(2), which puts an onus on the authority to consult the independent sector. This would strengthen the provision and assure the independent sector that it will be consulted. This is its greatest concern in terms of rights. Does the Minister understand my point?

The development of the code involves all players — the authority, the Minister, the independent production sector and the corporation. It must be finally approved by the Minister. The corporation will not have the final say. In terms of the acquisition of rights, the process must incorporate consultation. That is a key issue in any fair trading practice. In terms of the guidance given in the process, this is an area in which the independent producers will be engaged. I take this as a given because the entire process is set out to include consultation with independent producers. The Deputy's proposal would simply reiterate what is there.

How stands the amendment?

The wording of amendment No. 207 is better than that of my amendment No. 204 but I think it requires additions. I will withdraw my amendment with a view to reintroducing an additional provision to amendment No. 207 which, presumably, will be accepted.

I shall do likewise.

Amendment, by leave, withdrawn.
Amendment No. 205 not moved.

I move amendment No. 206:

In page 110, subsection (1), line 11, to delete "18" and substitute "15".

Amendment agreed to.

I move amendment No. 207:

In page 110, between lines 32 and 33, to insert the following subsection:

"(6) In meeting the requirements ofsubsection (5)(b) the corporation shall address the arrangements it proposes to adopt in respect of the duration and exclusivity of the various categories of rights it intends to acquire.”.

Amendment agreed to.

I move amendment No. 208:

In page 110, subsection (7), line 35, to delete "a code" and substitute "the code".

Amendment agreed to.

I move amendment No. 209:

In page 110, subsection (7), line 36, to delete "a corporation" and substitute "the corporation".

Amendment agreed to.
Section 112, as amended, agreed to.

We will suspend to attend the Order of Business.

Sitting suspended at 11.40 a.m. and resumed at 2 p.m.

I move amendment No. 210:

In page 111, subsection (1), line 5, to delete "Radio" and substitute "Raidió".

Amendment agreed to.

I move amendment No. 211:

In page 111, subsection (2), line 7, to delete "Radio" and substitute "Raidió".

Amendment agreed to.
Section 113, as amended, agreed to.

I move amendment No. 212:

In page 112, subsection (4), line 42, to delete "shall be" and substitute "are".

Amendment agreed to.

I move amendment No. 213:

In page 113, subsection (4)(j), line 24, to delete “companies” and substitute “organisations”.

Amendment agreed to.

I move amendment No. 214:

In page 113, subsection (4)(l), line 29, to delete “provide” and substitute “to provide”.

Amendment agreed to.

I move amendment No. 215:

In page 113, subsection (4)(l), line 32, to delete “and” where it secondly occurs.

Amendment agreed to.

I move amendment No. 216:

In page 113, subsection (4)(m), line 33, to delete “facilitate” and substitute “to facilitate”.

Amendment agreed to.

Amendment No. 217 has already been discussed with amendment No. 204.

I move amendment No. 217:

In page 113, subsection (4), line 36, to delete paragraph (n) and substitute the following:

"(n) to invest a minimum of 1 per cent of the amount attributed in the preceding financial year by RTÉ of revenues in the Television Integrated Business Division (IBD) in the notes forming part of the group financial statements as published annually by RTÉ (made up of commercial revenue and licence fee revenue as reported in the RTÉ accounts) in, originate or procure films”.

Amendment No. 217 was not discussed. This is where we get into difficulty with groupings. We agreed to break up the grouping, so we have not discussed this. We have not discussed the following ones either, amendments Nos. 222 and 223. We only discussed amendments Nos. 204 to 209, inclusive.

This is a modest proposal. It is not unusual in other European countries to have a small amount allocated within the broadcasting budget for either making or procuring films. This is particularly relevant at this time, when it is proposed to set up a film channel showing Irish films. It is interesting we can do this, but when we discussed setting up children's television there appeared to be a difficulty with the European Commission. I am interested in finding out how we can do one, but not the other.

With regard to the film channel, we could have an unexciting schedule and show films everybody has seen or repeat filmsad nauseam, because there is not an adequate pool of films, or we could have a dynamic film channel because every year a certain amount of funding would be earmarked for film making so we would have an ongoing stream of new film. Obviously, there would be other sources of funding, but it would be appropriate to have an accommodation within the broadcasting budget of 1% for film. I understand this happens in other countries.

The Minister said the film channel would not carry advertising. Perhaps I should not raise this now, but I will. Why is that the case? When one goes to see a film in a cinema, there is advertising at the beginning. Sometimes, the best part of the experience is watching the trailers. There is, therefore, a conscious, commercial aspect to going to the cinema to which people are accustomed. Am I correct there will be no advertising on the film channel?

That is an opportunity lost. It would not harm or damage the integrity of film to have advertising between films, or is it proposed to have only one film per night? I presume that is not the intention. I am not sure how the Irish film channel will work out, because the pool of film is fairly limited. I would think that having advertisement space before or after a film could fit in neatly and provide funding for the purpose of boosting Irish film.

I shall answer the last point first. The concept behind the film channel originated with the Irish Film Board. Its thinking is that it will show archived material that is available, which was publicly funded and has been paid for down through the years through investment in the Irish Film Board, the commissioning of films and other mechanisms. The material is not commercial. The film channel would give it an airing so that it could be enjoyed by the public, something that otherwise would not happen. There is no commercial case in terms of distribution of the film or time lags that might mean it would be unlikely to happen.

It is in that spirit, because it is a non-commercial store of archive and film material and a range of other not ordinarily commercial material, such as international film or film locally produced from a variety of sources, that there is no provision for advertising. I see the possibility of including some of the things we do in education, in film schools and in colleges of art and so on and of showing material that is not commercial where there is no requirement for certain audience figures to be reached, and that would leave editorial teams really free in terms of how they use prime time or their various slots. The concept behind the channel is not to have it as a commercial one. As soon as one starts having advertising as a main component, inevitably, as night follows day, we end up having programming and scheduling done on the basis of the likely audience and the advertising return to be obtained.

The other reason for not wanting advertising is that as a new digital technology model, and given there is significant archive material that must be digitalised anyway, the cost should be very low. The costs should be similar to the Oireachtas channel. This is not an additional channel that would have the same costs involved as in a standard free-to-air terrestrial television station.

I accept the Deputy's point that the only possible consideration would be advertising between films as we do not want advertising in the middle of a film, breaking it up. The thinking behind the decision was that I wanted to facilitate a non commercial film channel in terms of our digital terrestrial platform and provide a slot for such a channel, support it in government and provide the legislative facilities, which we have done in the Bill.

Funding for the channel will not come from my Department, but will have to come from the Minister for Arts, Sport and Tourism. Most film funding is channelled through that direction anyway. I cannot remember the exact budget for the Irish Film Board, but it is approximately €20 million. Any percentage we would give in terms of an independent production film budget would be insignificant with regard to that mainstream funding, which is the main source of funding for film in Ireland.

I am very reluctant to go the route of allocating further percentages, although we have that with regard to the independent radio broadcasting fund. If we try to legislate for a percentage here and a percentage there, we would end up removing the editorial freedom that is quintessentially important to a broadcaster for it to be able to allocate its budget on a flexible basis. I am reluctant to introduce further percentage requirements in that regard.

RTE jointly commissions a number of film projects, including in recent years "Garage". I remember meeting several film producers who got funding from RTE. In many instances they represent a very small percentage of the overall budget. Films are expensive: a standard feature film might cost at least €5 million, €10 million or €20 million. Any one such film would eat such a significant part of the RTE annual budget that it would be very difficult for it to do that. I would like to see it involved in investing in film at the same time on the basis that it would be easier for film-makers to go to broadcasters in other jurisdictions and point to the fact that our national broadcaster had taken a certain percentage. In many instances that is a very small percentage. It may often involve just the first distribution rights for Irish distribution, which I very much support and I would commend RTE to invest in such projects. However, I am very reluctant to do so on the basis of a percentage of its budget because it would end up with so many individual percentage chunks it would lose all flexibility from editorial decision. That is still a crucial requirement of any television company.

It is clear the Minister is dead set against any percentages. This is a very modest proposal. There is an opportunity now to showcase films. It seems to be very short-sighted to see this simply as a film channel that will be the responsibility of the Irish Film Board with no capacity to generate income and that will simply broadcast archive material. It is very safe and is not terribly progressive. This connection with the public broadcaster, RTE, creates a better environment to ensure a stream of film making. I do not know how much input it had in "Garage", but I imagine that decision was made at a time when the economy was flying and a great deal of money was floating around. We all understand it will be difficult to make that kind of contribution when the core work needs to be done. However, it should be embedded in this section.

I accept the film channel is very restricted in terms of who will watch 1930s films about the Blasket Islands, for example, but there will be an audience. My suspicion is that it will be a spending audience in terms of certain targeted advertising. The Minister would sell films short if he regarded the film channel in the way he has described. It would be a pity not to grab this opportunity and run with it to establish what capacity it has to grow and develop thereby enabling Irish film making to grow and develop.

I have a certain vested interest in that Ardmore Studios is in my constituency. We have all seen the most amazing resources put into a series like "The Tudors". It would be wonderful if even a fraction of that went towards Irish film making.

I have a later amendment on the film channel, which makes clear how I view it. We should regard it as being much more about the future of Irish film rather than using archive material from the past. It should be about encouraging and promoting the Irish film industry into the future, offering it a cheap platform to get short films and potentially big blockbuster films on to screens in Irish homes. We should do it by ensuring that a large number of people watch the film channel. We should allow it to carry advertising so that it can be properly financed and run as a really professional channel. I do not want a very low-budget Irish film channel that is produced in a student-type way, which is not necessarily a bad thing for individual programming on the film channel. However, I would like it to be a real quality channel carrying blockbuster films with short Irish films in between. This would ensure a big audience is encouraged to watch shorter Irish films.

However, the channel as proposed by the Minister would be a niche channel run by the Irish Film Board. Again that is not a bad thing because it knows more about Irish film than others do. I get the sense that what is proposed is a very low-budget, and potentially low-quality and low-audience channel containing archive material including documentaries aimed towards a niche audience. The danger is that no one will watch it apart from people who are in the industry. However, linking blockbuster films with Irish films and allowing for advertising, promotion and all the other things that go with that would be a far more attractive proposition. I will come to that later. I am happy to support the amendment. Some 1% is a very small percentage of the overall budget and would not tie RTE's hands.

I hear what the Deputies are saying. The crucial question is about the nature of the film channel. We need to decide whether it should carry films that are niche with a local or Irish content, or whether it should carry blockbuster films and be more commercial. In our evolving broadcasting market, there is need and a space for that specialist niche outlet. In some instances it may attract very large numbers. Some of the programming that has been successful in Irish broadcasting is local and tells a local story that might not be a blockbuster. For example I believe "The Burning of Cork" got a very large audience. It was historical and used much archive material, but it evoked great interest.

It is possible to do both.

It is possible, but in setting the course for the channel we need to decide whether it should be a commercial channel containing blockbuster films that will attract a large audience or a channel whose chief intent is to be innovative, flexible and targeted at different niches, which over time would build up an audience not otherwise catered for. I would prefer if the film channel went in that direction rather than trying to cover all bases with the largest possible numbers. That does not necessarily mean that it would lose quality. In some cases it might lead to better quality. We can return to the subject on Report Stage as it is worthy of consideration. I know Deputy Coveney has a later amendment on the matter.

Section 127(4) precludes advertising on the film channel. We may need to reconsider that provision. The downturn in public finances may make it less certain that we will have the necessary funding available in the short term. I listened to what the Deputies have said and I will not preclude us considering it. However, even if we do, my instinct is still to set such a channel in the direction of being innovative and flexible without necessarily looking for a commercial return on the screening of a film.

Nobody is demanding a commercial return on a film. It would be wrong to present it in that way. Sometimes films turn out to be commercially very successful. An example is "Once", which was a small, low-budget Irish film. People presumed it would not get very far, even though it was a very good film, but it won an Oscar. Who can forecast what will grab the attention of the public? It is not a question of aiming to support blockbusters or commercially lucrative films. That is not the point. In developing a film channel to broadcast the body of Irish film work, I would have thought we would be keen to build on the archive by putting in place a good and healthy film fund to encourage people to make films. If they produce blockbusters, that is fine. If they do not, we will not mind, as long as the quality is good. We can trust the Irish Film Board to make sure standards are high. I am uncomfortable with the elitist view being presented. I do not share it, although that is a matter for another day.

Most public service broadcasters across Europe invest in film production. In Spain 5% of the national broadcaster's operating income is allocated to film production. The film fund in Switzerland is €7 million, while the fund in the United Kingdom is £15 million. I do not suggest we should ape other countries, but it is important to mention what is happening elsewhere. There is a history of film-making in Ireland. It was somewhat difficult in the past when funding was not available but we now have a highly sophisticated broadcasting apparatus or infrastructure which is growing significantly and will develop further with the advent of digital terrestrial television. We should support it by establishing a small fund that would kick-start the production of films that are about Ireland and primarily for Irish people. If RTE were to provide a small amount of money in support of a film, at least it would be adding its weight to the project. That would be of substantial importance for the film-maker as he or she tries to seek funding from the private sector. It would be a very good use of RTE's standing as a public service broadcaster. I would trust it to make good choices — that is not the issue. It seems we need to make a statement that the establishment of the film channel is an important new departure. We should develop its possibilities, as it should be more than a history channel.

We can come back to this issue on Report Stage. My instinct is to be reluctant to set out percentages in every category, as to do so would diminish the editorial freedom of those involved. We will consider ways of giving a signal that we encourage RTE to invest in this sector. Part of the background is the possibility of developing a labour-intensive and creative economy which matches our skills in the film industry. I will certainly consider this.

I will respond to the Deputy's point about the film channel, even though it does not relate to the amendment. I am reluctant to impose too many constraints on the editorial decision-making of any television station. Similarly, commercial pressures — the need to acquire commercial advertising revenue — can constrain good broadcasting standards. The nature of commercial broadcasting leads to pressure to chase ratings rather than providing the programming broadcasters might otherwise want to provide. Public service broadcasters have an obligation to use some of their crucial peak time broadcast slots in ways not determined by commercial pressures. However, such pressures have huge sway. Human nature means that one is concerned about one's income and budget. Everything depends on one's advertising revenue. Commercial needs are always inexorably at the back of one's mind. One needs to consider whether certain programmes will attract sufficient viewing numbers — whether they will fly. It is a general philosophical point. I do not disagree with Deputy McManus. There is space in broadcasting for projects such as the proposed film channel that liberate programme makers and schedule designers who should be in a position to do something innovative and different without necessarily having to worry about how it will affect ratings and commercial advertising.

I do not see this as a way of funding the film channel which I understand will not cost much. It will be the responsibility of the Irish Film Board. A rolling fund, to which RTE would contribute, is needed. If advertising is feasible — I do not know whether it will be but imagine that it will — such revenues could also be added to the fund. I assume that those who will watch the specialist films that will be broadcast will be higher earners. I do not know, as I am not in the film business. However, if money were available, it could be used to develop further film-making. It is obvious that the Irish Film Board is interested in generating more income, as the demand on it is much greater than its capacity to meet that demand. That is how I envisage that the channel will work. It will not cost much money.

We will come back to this issue. A later amendment sets out an alternative proposal for the Irish Film Channel but we might not get to it today.

I will withdraw the amendment with a view to returning to the matter at a later stage. I understand the Minister will consider this proposal.

Amendment, by leave, withdrawn.

I move amendment No. 218:

In page 113, subsection (4)(q), line 42, to delete “in” and substitute “of”.

Amendment agreed to.

I move amendment No. 219:

In page 114, lines 20 to 22, to delete subsection (8).

Amendment agreed to.

I move amendment No. 220:

In page 114, subsection (9), line 27, to delete "television" and substitute "television and sound".

Amendment agreed to.
Section 114, as amended, agreed to.
Section 115 agreed to.

I move amendment No. 221:

In page 115, subsection (5), line 24, to delete "these monies or a specified portion of it" and substitute "those monies or a specified portion of them".

I want to highlight an issue that has probably been raised with the Minister. My concern relates to the provisions of section 116(2)(a) which sets out the purposes for which moneys “standing to the credit of the account shall be used by RTE”, rather than to the amendment. I understand a similar section in the existing legislation, section 4(2)(a) of the Broadcasting Authority (Amendment) Act 1993, states the moneys in the independent production unit’s account are to be used for the following purposes:

(i) commissioning the making of independent television programmes,

(ii) procuring the formulation by persons of proposals for the commissioning by the Authority of the making of programmes as aforesaid,

(iii) assisting the completion of programmes as aforesaid the making of which has not been commissioned by the Authority...

While the provisions of section 4(2)(a)(i) and (ii) of the 1993 Act are covered in the wording of the legislation before the committee, the provisions of section 4(2)(a)(iii) are not catered for. I know there are concerns in this regard. Let me give a practical example. If a person is developing a programme and hoping to have it broadcast on RTE but is able to finance just 80% of the cost of the programme, he or she might contact RTE to look for money — 20% of the total cost in such a case — to finish work on what could be a fantastic product. Under this legislation, as drafted, RTE does not seem to have a facility to help programme makers in such circumstances. I do not understand why we are removing a provision that RTE already enjoys and which I understand it has used in a constructive way at times. It has helped people who have run out of money two thirds of the way through a project but were keen to bring their really good product to finality. This legislation needs to contain some wording, presumably in a new section 116(2)(a)(iii), to allow RTE to assist in the making or completion of programmes in circumstances in which it would be providing less than 25% of the cost of such programmes. I am not sure whether the Minister is aware of this but perhaps he is planning to deal with it. I might be missing something in terms of the language used in the Bill.

I do not think the Deputy is missing something, rather the Bill is missing what he has suggested. We will return to the matter on Report Stage to see if we can reinstate such a provision as it makes sense.

I thank the Minister.

Amendment agreed to.

I move amendment No. 222:

In page 116, lines 3 to 19, to delete subsection (8) and substitute the following:

"(8) In Part 1 of the Table to this section, "appropriate amount" means twenty (20) per cent of the amount of commercial revenues and licence fee revenues attributed by RTÉ to the Television Integrated Business Division (IBD) in the notes forming part of the group financial statements for the immediately preceding financial year concerned.".

This amendment is linked to amendment No. 227. It relates to the contentious issue of whether the Bill should have an actual figure in terms of what RTE is required to spend on independent productions or whether we should specify a percentage figure of the overall revenue that comes into the integrated business division within RTE.

One can make a coherent case for either approach. I am not seeking to get agreement on 20% but to agree the principle that it makes more sense to have a percentage figure rather than an actual figure. The current proposal by the Minister is for a minimum spend of €40 million. We should consider a percentage figure of RTE's overall television revenue and try to match that to a rough figure. The reason I believe a percentage would be more accurate is because we do not know in the future whether there will be financial pressures on RTE or what amount of money will be available to it in terms of income and spend on television programming, but if we agree the principle that a certain amount of that money should be spent on independent programming, an agreed figure is a far less flexible mechanism than a percentage figure.

What I am seeking to do is to ensure that on the one hand we are protecting the revenue stream for independent production companies across the country that are currently getting significant support from RTE so that when times get difficult it is easy for RTE to make a saving without having to make internal savings. At the same time that would ensure from RTE's perspective that if advertising revenue were to collapse, for example, it is not tied to an actual figure that it cannot afford to spend without causing budgetary carnage within RTE in order to make savings. The principle of a percentage figure makes sense in terms of the current economic situation where revenue streams are far from certain in the commercial sense, as regards advertising revenue. We should ensure that the revenue stream is certain in terms of licence fee money.

I am anxious to hear the Minister's perspective. He has been considering the matter but I do not know what conclusions he has drawn. I put a figure of 20% in the amendment because that roughly equates to the figure of €40 million proposed by the Minister in terms of the percentage of television revenue as it may be next year. I am open to considering whether the percentage should be higher, as the independent sector would like. RTE may well make the case that the percentage should be lower. I wish to have a discussion on the principle of whether from the perspective of RTE there should be a specified figure or a percentage of television revenue.

This is an important amendment that delineates a different approach from that which pertains currently. I tabled an amendment with a higher percentage but I am withdrawing that because the percentage I proposed was probably too high. That said, the issue that has been raised by the independent sector needs to be explored. Essentially, this is something that has been brought into sharp focus because of the sudden downturn in the economy.

We have seen a growth in the independent sector, which RTE has facilitated by commissioning a lot of independent work from which both sides appear to have benefitted. The quality of programming in RTE is of high value. On looking at the figures in recent years I was surprised at how high the percentage is. In 2005 it was 36.66% of television revenue. In 2006 it was 30.89%, in 2007 it was 31.45% and in 2008 it will probably be just less than 35%. This year between €68 million and €70 million, or perhaps higher — I am not certain about the actual figure — will be spent by RTE on the independent sector. That is far in excess of the figure of €40 million outlined in the Bill.

I do not know where the Minister came up with the figure of €40 million. I am not sure whether RTE has suggested it or whether it was the Department, but it does not seem to tally with what has happened in terms of the relationship between RTE and the independent sector or the future arrangement, because it is my understanding that in 2009 even though revenue has been reduced there will still be an expenditure on independent programming well in excess of €40 million. That does not make sense, especially when one looks at the fairly steady proportion of funding that goes to the independent sector, which I hope will not change significantly.

When a delegation from RTE appeared before the committee it explained how difficult its financial situation is. I took that on board. I appreciate that it is a large employer that is concerned about quality and dedicated to continue with programming and to retaining its staff. All that puts an enormous strain on resources but there is still a need for the independent sector even within that equation. It is a healthy relationship and I hope it continues but there is a danger with that kind of relationship that when things are good one pulls in a lot of independent programming because the resources are available and one does not have to employ more people in-house, but when the revenue drops one can turn off the tap. That is a worry for anybody looking at the growth of the independent sector because if the future is going to be that volatile, if there is not going to be some kind of proportionality, the worry is that one could end up with a situation where one does not have a healthy, growing independent sector.

We need to strike a balance. We want to ensure that the public service broadcaster is able to continue its work but because of the current position regarding dual provision we have to ensure that the situation will not arise whereby the independent sector could be irreparably damaged. The proportionality can be provided by way of percentage. With all due respect, 20% is too low and 35% was probably too high but we need to address the matter in some way. I hope the Minister does not come back with what he said in previous discussions. I do not wish to tie anybody's hands and I do not want the question of percentages to close down the discussion because I believe he would accept there is an issue here and that we should find a way forward.

In this regard, I do not see from where the sum of €40 million referred to has arisen and how it tallies with even the current situation in RTE. Perhaps I am missing something, but in terms of proportionality, there should be a proportionate benefit when things are good, and when they are bad the burden should be proportionate. That is what the amendments are aiming to achieve.

RTE makes a very valid case to the effect that it needs to be able to budget on a multi-annual basis. It needs to be able to plan, knowing that it is guaranteed a certain amount of income from licence fee money. It is up to RTE to deliver the other half of its revenue from the commercial sector in terms of advertising revenues and so on.

The same principle applies to the independent sector, however. It has grown up, expanded and developed in a positive manner because in recent years RTE has increasingly sourced a certain amount of its programming from that sector. We are putting legislation in place that will still be there in 20 years' time. If we insert an actual figure here, will we not have to come back and change it, given that €40 million then will not have anything like the value it has now? A percentage figure will move with the times each year. When times are tough for RTE, then the actual figure goes down in terms of its spend in the independent sector because the money is not available. If a percentage figure is used, then when times are good and it has extra money, it can likewise give more to the independent sector. At least there will be a percentage figure that is flexible with the level of revenue available to RTE.

An actual fixed amount is a very crude way of dealing with this issue. As we move ahead year on year and the cost of producing independently — or for RTE — increases, that is not taken into account, so that in effect, if we say €40 million now, the figure becomes less each year in real terms, unless it is adjusted for inflation or whatever. On the other hand, the principle of a percentage figure seems to make more sense because it provides for upturns and downturns in the economy and deals with inflation in terms of the cost of production — it treats both sectors in a fair manner, which is important.

I have included a figure of 20% mainly for discussion purposes. I believe that if the Minister is going to deal with this in a serious manner, he needs to talk to RTE and the independent sector and I do not believe he has necessarily got that right. However, I wanted to push this to try to get the discussion of the principle underway first and foremost as to whether this should be an actual or percentage figure. Having repeatedly considered it I believe the percentage figure makes more sense in the context of legislation that will have effect for a long time.

The figure is CPI amended. If one was making a 3% CPI provision, in ten years that would bring the figure up to €54 million or so. Therefore a certain amount of increase is being provided for. However, that is not the key point here. I believe we have a common sense in this regard, in so far as one of the reasons for promoting the independent sector is that it is a real source of creative thinking. The very nature of people in the independent production sector is indicative of this. They are flexible and they can come with ideas and other mechanisms for doing things in a creative manner. That creative impulse should be supported and a secure environment assured for such creative independent production.

Similarly, I imagine the Deputies opposite would agree that at the same time a certain body of creative talent, ability and size must be maintained by a broadcaster so that it too has access to such creative ability within its confines. One must be careful to get the balance right, in terms of not damaging the ability of the broadcaster to have in-house talent, so that it can move around – and that requires a certain scale. We are in a difficult space here because we must take into account those two conflicting and proper interests.

As I see it, the €40 million figure was very much set as a stop-gap. It was not to be a limit in terms of what the scale of independent production should be — recognising that in recent years it has increased very significantly. I understand that in recent years the figure has reached more than €70 million in respect of independent production commissions. Therefore it was not inserted as an indication of where that balance lies, but was simply a stop-gap measure to ensure that at least it did not go below that figure. It is recognising that the figure is some 20% higher than what was provided for in the previous legislation. Thus, it has been progressively increased from what existed previously.

To return to the points raised by the Deputies regarding the fundamentals over whether that should be an exact figure, there are advantages and disadvantages. At least an exact figure is just that, and will increase with inflation, as I have said. With a percentage it is only possible to know the precise figure after the audit is done. The advantage of a percentage, however, as Deputy Coveney pointed out, is that it is a more flexible mechanism and may sometimes increase beyond CPI. Therefore, one approach versus the other is not the key dividing issue. I believe it is more a question of what stop-gap we should provide as the baseline within that mix which we all agree is taking place. To some extent that requires me to come back to the Deputies in terms of affirming whether they believe the suggested 20% is the right level.

Clearly, we must recognise that given the realities of the advertising world, all programmers next year will face a more difficult environment. The likelihood of a significant increase in the number of licence fees is much diminished because of the slowdown in the construction sector and difficult economic times, generally. It will be difficult to get in increased revenue on the basis of the licence fee.

I have listened carefully to what the Deputies have had to say today. This was one of the areas on Committee Stage where I had looked forward to getting a contribution from members opposite, because this is not an easy issue. It is not rocket science and there are two competing areas of interest. I should be interested to hear from the Deputies whether they believe that stop-gap method based on a 20% limit is appropriate, given that Deputy McManus seems to indicate that 35% was probably too high in the current circumstances.

I also said that 20% was too low. In a sense it is up to the Minister to come forward with proposals. The figure he has proposed is remarkably low — €40 million for 2008. If the actual amount paid by RTE for programming was inserted there, that at least would be consistent and make some sense. I am not sure how this might be legally interpreted, but is it the case that he can only provide for €40 million? It is not a minimum figure, but rather indicative of the amount of money to be paid by RTE for independent programmes. The Minister says that he does not want to be restricting RTE but, as I read it, that could be a very restrictive amount because it is not qualified at all. It sets a baseline so low that presumably, into the future, the yardstick to be used as the appropriate amount will be the €40 million.

I do not believe the Minister has done this right, even in his own terms. I am not going to haggle over percentages but a figure of 20% is low. The average here that has already occurred is 37%, whereas in difficult times there has to be some lower point to protect RTE from being loaded with a totally unrealistic burden. However, the figure of 30% is actually lower than any provision in the last four or five years and in view of this, perhaps 30% is the minimum that should be provided for.

Having listened to RTE making presentations, there is sincere concern about an undue burden, which I can appreciate. However, a sum of €40 million does not reflect what RTE envisages for this sector. Moreover, I have not detected opposition within RTE to the principle of percentages. It is simply a case of getting it right. I suggest the Minister consult the various sectors before Report Stage to ascertain whether it is possible to bring forward a formula that would be more in keeping with both the reality of developments in the relationship between RTE and the independent sector and the economic realities we face. There must be certainty on both sides. The manner in which it is structured is unfair. Planning ahead is crucial in both public service broadcasting and the independent sector. A percentage system would offer a better chance.

Without labouring the point, the Minister is absolutely correct in respect of the consumer price index. I had not read section 116(8)(b). However, that is not the issue. Were the Minister to give a commitment to consider the correct and appropriate percentage, I would be satisfied because I am unsure whether this issue can be thrashed out here. While the figures available to members for television revenue and actual expenditure for the past four years suggest a figure higher than 20%, it depends on whose figures one considers. A detailed study is required of what is the level of television revenue and how much is being spent. Such a study should consider the implications, for example, of what is likely to happen next year and try to work out a figure because the last four or five years have been years of plenty in Ireland and it is not necessarily the case that the same rationale now can be applied.

I agree with Deputy McManus's point. Were this provision to be read without having the benefit of this discussion, one would read the appropriate amount of moneys to be paid by RTE into the account as being €40 million. It does not state the appropriate amount should be equal to, or more than, €40 million, which is what the Minister has suggested and which essentially constitutes inserting a floor below which it cannot go. However, if I did not have the benefit of this discussion on the Minister's intent, I would read "appropriate amount" to mean the actual figure the legislation encourages RTE to spend, rather than specifying the appropriate amount is a minimum, or not below, or equal to or above, or however one might phrase it. If an actual amount is specified, it should be included as a floor, rather than as an appropriate amount. I still believe the argument for the percentage figure has much to recommend it, as does the suggestion departmental officials should meet representatives of the independent sector and RTE to try to thrash out a figure with which people could live.

I am reluctant to engage in a series of meetings because we already have listened to them. It was useful to discuss this issue among members, each of whom has spoken to various sides in this respect. Consequently, it is right and proper to take into account such views on Committee Stage before coming back on Report Stage with a final deliberation and I will do so. However, as our timelines are tight, I will not reopen the consultation process. All members have listened in an effort to understand the interests of various sides. I will take this into account and come back to the issue on Report Stage.

I did not suggest there should be a round table discussion at the end of which everyone would declare themselves satisfied because probably that is not the case. I refer to agreeing on the actual figures. There is some ambiguity, for example, in figures I have seen for RTE's television revenues, when everything is taken into account. One must be clear on what are these figures in order that everyone makes a percentage calculation based on the same amounts, about which there is some confusion.

That is the advantage of having a nominal figure rather than a percentage. One knows exactly what the figure is.

I know that. However, one should not take the easy answer, if it is not the right one. My concern is that because agreement cannot be reached on an appropriate percentage figure, members are agreeing on a nominal figure, which is a clumsy way to deal with the issue compared with getting right a percentage figure. However, if the Minister will consider the issue, I will withdraw my amendments for now and members can take up the discussion again on Report Stage.

Amendment, by leave, withdrawn.
Amendment No. 223 not moved.

I move amendment No. 224:

In page 116, subsection (11), line 35, to delete "television".

Amendment agreed to.

I move amendment No. 225:

In page 117, subsection (15)(a), line 48, after “programmes,” to insert “and”.

Amendment agreed to.

I move amendment No. 226:

In page 118, subsection (16)(a), line 8, after “programmes,” to insert “and”.

Amendment agreed to.
Amendments Nos. 227 and 228 not moved.

I move amendment No. 229:

In page 118, to delete lines 23 to 34 and substitute the following:


Financial Year

Minimum % of monies paid into account to be expended by RTE on independent sound broadcasting programmes









Each subsequent financial year



This amendment obviously is of interest to the radio sector. Although the Minister is cautious in respect of percentages, he has provided a breakdown between television and radio, in which the lion's share, 95%, of the moneys are dedicated to television programming. This is appropriate and no one will argue with it. He also has agreed to make 3% available to the radio sector. However, the reason the remaining 2% is floating in the ether without belonging anywhere is somewhat unclear. It is worth bringing the concerns expressed to members by the independent radio sector which seeks a critical mass in respect of its future to attention in this discussion.

The Minister has provided for a figure 3%, or at least an increase to 3% by 2013. I suggest it might be simpler and fairer to increase this figure on a graded basis to 5%. My fear is that were the outstanding 2% left floating, invariably it would be subsumed within the television budget. While this is a small amount, it is highly significant in the context of radio programming. This, again, raises the general point as to whether sufficient attention is being paid to radio programming. Radio Éireann originally was all about radio. It constituted a great leap forward in communications and had an enormous influence on our society. Its significance in its day was probably greater than that of television when introduced. It still is an important feature. There are now many commercial radio stations. However, another type of radio programming is part and parcel of what we are and explores all sorts of topics, historical or contemporary, that cannot be explored on television due to the cost.

The Minister has talked about the dynamic in the independent sector. In ways, some of us feel a little uncomfortable with the idea, as if the broadcasting station was not dynamic in what it produced. Certainly, the independent sector makes a significant contribution and it adds to the mix. This is simply ensuring that the 5% would be allocated to radio programming to provide certainty and to acknowledge radio's role as a significant part of public service broadcasting. Otherwise, it would become wallpaper, where there is lots of music and pretty well nothing else.

My proposal is similar. Over a period of four or five years, the minimum percentage figure for spend on radio would increase. There is a problem in the current proposal. If the minimum spend on independent television and radio programming amounts to 95% and 5%, respectively, the minimum would become the actual figure. My proposal would lead to a conflict, but the independent radio sector is anxious not to be forgotten in the legislation. It believes it can offer a significant amount were it given resources. In question is a small percentage of the independent sector's figure.

Ireland is good at delivering independent radio programming and we have a great deal of talent. While we should promote the independent production sector in television, it would be easier in many ways to promote it in radio because the resources involved would not be as significant. The Bill tends to view the radio sector as an afterthought. In amendment No. 230, I am trying to maximise our commitment to that sector. It is not unreasonable to increase the amount in the coming years.

While I expect the Minister to state that there can be no minimum figures without flexibility, I appeal to him to determine whether the figures allotted by the Bill to the independent radio broadcasting sector can be increased.

For this reason, the new provision has been made. Several years ago, no independent radio production was commissioned. Certain instances of freelancers within the system were counted as in-house production. The new provision is designed to promote independent production.

Regarding flexibility, 95% would go to television and 3% would go to radio, with the remaining 2% going either way. While I agree with Deputy McManus that this is not to say that there cannot be creativity within a larger institution, it may be a law of nature or Parkinson's law that certain rigidity is built up, thereby losing out on the flexibility or innovation of smaller independent producers. The percentage is being applied for this reason. Just as there was nothing to limit RTE in going beyond its previous minimum spend of €32 million when commissioning independent television, there is nothing to stop it from extending its use of the independent production sector beyond the percentages set in the Bill.

It might be argued that radio is a different matter, given that its large amount of live programming lends itself to an in-house production team and cannot be prepared in advance to the same extent. It responds to the day's events and news items as they break. Given the variety of demands on RTE's schedule, this does not preclude the development of the independent production sector intended in the Bill.

I will examine the 3% figure in terms of whether the structure is appropriate or should be more directed. It would be a relatively small change within the overall context of our attempt to move in another direction.

I withdraw my amendment so that it can be reverted to on Report Stage.

To clarify, will the Minister examine the percentages or something else before Report Stage?

We can examine how to define the allocation of the 5%.

Amendment, by leave, withdrawn.
Amendment No. 230 not moved.
Section 116, as amended, agreed to.
Section 117 agreed to.

I move amendment No. 231:

In page 119, subsection (1)(a), line 5, after “Ireland” to insert the following:

"in a way that is consistent with and in the spirit of the Good Friday Agreement 1998".

This tries to reinforce a valid point that has been made to me regarding TG4's objectives. Section 118(1) states:

The objects of TG4 are--

(a) to establish, maintain and operate a national television broadcasting service, which shall have the character of a public service, be a free-to-air service and be made available, in so far as it is reasonably practicable, to the whole community on the island of Ireland,

My understanding is that there is a relevant section in the Good Friday Agreement. It should be reflected to reinforce the importance of TG4 acting as a vehicle for encouraging the use of the Irish language north of the Border. TG4 means much to communities in the North that are committed to the promotion of Irish.

I am not asking for much. Rather, I am asking for something that is consistent with and in the spirit of the Good Friday Agreement. It would reinforce what has already been agreed. Since we are not making a specific reference to an article in the agreement, no one in, for example, the Unionist community would have a difficulty with our pushing the Irish language on certain sectors of the community in the North. I hope such thinking no longer exists.

The amendment is supposed to be a positive reinforcement of an objective about which we sometimes forget, namely, servicing a community north of the Border in the promotion of the Irish language through the public service element of TG4. I hope the Minister will accept the amendment.

It is good to highlight the connection that Nationalists north of the Border draw between the Irish language and their cultural inheritance. What the Unionists have done is interesting. Rather than opposing an interest in the Irish language they have developed an interest in their own language of Ulster Scots. There is a certain amount of creative working out in the language of Ulster Scots but they have an entire agency, with all the bureaucratic apparatus, and a dialect which is used in official documents and promoted by the agency.

If this provision is allowed for, would it require that TG4 become involved in the concept of Ulster Scots? It might be an interesting development. If it is a case that there is a certain parity of esteem underlying the Good Friday Agreement, is this something to which we could look forward?

With regard to Ulster Scots, my amendment is not necessarily inconsistent with the idea. This is to be "consistent with and in the spirit of the Good Friday Agreement", which is all about communities sharing in their diversity in terms of language and culture, etc.

Would there be Irish language programmes with Ulster Scots subtitles?

I understand where the Deputy is coming from but section 118 starts with the principal objective of TG4 being available to the whole community on the island of Ireland. Section 118(2)(a) indicates it must be responsive to the interests and concerns of the whole community, be mindful of the need for understanding and peace within the whole of Ireland, ensure the programmes reflect the varied elements which make up the culture of the people on the whole island of Ireland and have special regard for the elements which distinguish that culture and in particular for the Gaeltachtaí.

The Bill rightly recognises the all-island characteristics TG4 has by dint of being available under the Good Friday Agreement by obligation on the UK authorities. We have sufficiently addressed that in the paragraphs referred to and I would prefer to not further qualify that with reference to a political agreement. It would not add to the wording.

I do not agree with the Minister; I would not have tabled the amendment otherwise. This is an opportunity for us to focus on a positive in the Good Friday Agreement in broadcasting terms and in the reaching out to a community north of the Border that often feels cut off and isolated from the South, as it is termed.

People in the Republic of Ireland are helping to pay for TG4 with their licence fee money, although the station's funding process is slightly different from other broadcasters. Either way it is a station funded within the Republic of Ireland but which reaches out to community interests north of the Border. The Good Friday Agreement should be celebrated and this is an appropriate opportunity to reinforce what has been agreed. I appeal to the Minister to think about it before Report Stage. He does not seem to be for turning today.

Amendment put and declared lost.

That was very close.

What was the Deputy's position on it?

It was the same as mine. I got the nod.

I move amendment No. 232:

In page 121, subsection (4)(j), line 11, to delete “companies” and substitute “organisations”.

Amendment agreed to.

I move amendment No. 233:

In page 121, subsection (4)(q), lines 27 and 28, to delete all words from and including “to” in line 27 down to and including “service” in line 28 and substitute the following:

"to establish and maintain an "electronic communications service" meaning a service".

Amendment agreed to.
Section 118, as amended, agreed to.
Section 119 agreed to.

I move amendment No. 234:

In page 122, subsection (1), line 24, to delete "and" and substitute "and at".

Amendment agreed to.
Section 120, as amended, agreed to.

Amendments Nos. 235 and 237 are related and may be discussed together.

I move amendment No. 235:

In page 122, between lines 36 and 37, to insert the following subsection:

"(2) At all times practicable save other than for operational and maintenance purposes that RTÉ use the maximum power levels as sanctioned by the ITU and licensed by ComReg in the case of an LF broadcast transmitter serving the island of Ireland and/or Irish communities abroad.".

These amendments relate to the question of broadcasting overseas in particular and ensuring people can hear RTE. The issue arose before when RTE withdrew medium wave services. The issue came very starkly into focus when RTE told us at a committee meeting, through Mr. Cathal Goan, that the diaspora channel would not proceed for the moment because of cutbacks and the reduction in revenue.

That highlighted an issue in terms of Irish people living in communities overseas and people living in parts of this island who may have difficulty with transmission. There is an area of concern now, particularly in living up to a commitment that was enshrined in legislation. My colleague, Deputy Emmet Stagg, has raised this issue many times, and the Government took on board the issue of having a dedicated channel. That was laid out in legislation, so there is a statutory basis, yet it has essentially been put on ice. That is a worrying mindset. There is a poetic phrase about things being put out the back of the house and forgotten about with regard to our emigrants and it seems this is part of the same mindset.

With regard to the amendment, longwave 252 is used at the moment but it suffers from severe interference in the south east of England and near Europe. An Algerian station, to which I have previously referred, has night power which is 30 to 40 times more powerful than longwave 252. That creates difficulty.

The second amendment relates to the emergency services, as we must ensure the use of broadcasting and RTE in particular during a national emergency. The concern is whether the infrastructure is robust enough. In an emergency RTE would be obliged to broadcast at its maximum power; however, RTE's longwave transmitter is not managed and maintained with this in mind. In the days of the commercial radio station Atlantic 252, serving a teenage UK audience, RTE used the full allocated power of longwave 252 but now that the transmitter is used to broadcast RTE Radio 1, the transmitter has been downgraded to almost half power. As outlined above, this reduction in power results in a reduced service not in keeping with the needs of a national emergency.

This is a technical matter and I am not an expert in this area. It is a matter of some concern for people living overseas who we all agree have a right to access the public service broadcaster. It is also relevant in cases of emergency, when we must ensure infrastructure is in place and working so it can work as it is supposed to in a crisis.

I support Deputy McManus on the technical issue of power and the use of the frequency. This matter was raised during the debate on the shutting down of RTE's medium wave service as has been mentioned. I presume these two amendments have been drafted by somebody who shares those concerns. I ask the Minister to consider the matter.

With regard to the diaspora channel, I can understand RTE's decision, although I disagree with it fundamentally. Whether or not RTE is required to put in place a channel that reaches out to our diaspora is a policy matter and should not be a budgetary concern. I was waiting for an opportunity at some stage during the discussion on the Bill to raise the issue and perhaps this is the appropriate time.

I accept RTE has difficult decisions to make currently and has real budgetary problems. It must make savings and cutbacks in the same way that two from every three businesses in the country currently must. For the Minister to allow RTE alone to make a decision on the diaspora channel is inappropriate as this is a policy decision made primarily by Government with RTE. It was meant to provide a broadcasting service to Irish people living outside Ireland, of which there are many millions. It would be an expensive policy decision which has consequences but we cannot simply say that RTE cannot afford to do it this year and that it will not even get the project up and running until next year, when there may be a similar line from RTE.

If the Government decides that we want a certain proportion of licence fee money to be spent on ensuring the Irish diaspora gets a service from RTE, it is a policy decision. I accept RTE has the headache of dealing with the matter and there could be potential funding puzzles in finding more money for RTE to provide the service. To make the case that times are tough and we cannot therefore provide a service for the diaspora is a very easy way of making a saving. As a new service is not being introduced, nobody has to take any pain.

We have a responsibility to reach out to the Irish diaspora and the policy decision was taken some time ago that we should do so. At a minimum we should have a policy debate as to whether we require the diaspora channel to be operational. Such a service would be much more important than an Oireachtas channel. It is also arguably far more important than a new film channel in Ireland. Many people living in the Irish diaspora feel cut off from Ireland and would respond very positively to a diaspora channel.

The Minister made the comment earlier asking what public service is about. One of its objectives should be reaching out to Irish people who do not happen to live on the island of Ireland and who have left for all kinds of complex reasons. Our public service broadcaster has an opportunity to try to re-engage many of those people on what Ireland is about and the direction the country is taking and so on.

My comments do not refer to a particular amendment but I would like to hear the Minister's thoughts on what he plans to do about RTE's decision. To be fair to the organisation, it did not make its decision because it does not agree with the diaspora channel in principle but rather for financial reasons. I disagree with its ability to make that decision without a policy debate on how we want licence fee money to be spent. The Minister should respond to that.

These are two good amendments addressing a technical point on different issues. There is a connection between ensuring we have sufficient power and coverage to allow Irish people living abroad to get reception and the postponement of the rolling out of the diaspora channel, which we cannot allow go unchecked.

I made response to Deputies in parliamentary questions yesterday and expressed that I was very disappointed when I heard of the decision with regard to the timing rather than the policy of the roll-out of the satellite facility from RTE to the Irish diaspora. My Department wrote to RTE three and half weeks ago to remind it of the statutory decisions made in that regard and to look for an indication of the timetable RTE is now looking at.

I share the Deputy's concerns, as the decision was taken here after much debate and consideration. It is an appropriate extension of the public service remit of RTE. The way in which RTE had gone about delivering the service was right and it had done very good work in considering the various technological options and discussions with the satellite providers. It was particularly frustrating that having been so close to what I saw as a good solution to a difficult technical issue, the original timeline did not proceed because of economic circumstances. I expect the change is down to timing rather than policy.

On the specific amendments, I understand the Deputy's intention but I do not propose to accept them. The intention is good but in primary legislation we set out the broad objectives, and it is inappropriate to specify here the technological standards and parameters that would support the broad objectives of, in this instance, providing a radio service to the UK.

Radio services are licensed by ComReg under the Wireless Telegraphy Act 1926 and for each licence ComReg sets out the maximum permitted powers and relevant technical parameters under which the service can operate. In the case of longwave radio services, anybody who listens at night will recognise that radio waves travel further at night than in the day and therefore the maximum licensed power at night would be less than during the day.

Were RTE to operate according to its maximum licensed power at all times, it would need to increase power during the day and reduce it at night, increasing the cost of providing the service but not the quality of reach. RTE chooses to operate on constant power, operating below its licensed daytime maximum power to save costs and increase the lifetime of the equipment while providing a more reliable service.

The details of setting the power at the right level is a matter for the station directly or via ComReg in terms of its remit in the Wireless Telegraphy Act. It is not right for us in primary legislation to get into those specific technical standards.

ComReg has provided for the maximum power levels and presumably it recognises there is an issue. If it is a cost-saving device, is it up to ComReg or the broadcasting authority to ensure the brief being given is lived up to? In a way, it is the same issue as the lack of a diaspora channel. One can have a service but it is a pity if one cannot hear it because an Algerian service interferes with it. As the service is provided, the provider is living up to the brief. What happens if somebody wants to raise this as an issue? If it is not in the Bill, does the broadcasting authority have any power? ComReg has clearly given an allowance with a higher specification for power than is being availed of.

This relates primarily to allocation and management of spectrum and the effect of this. This is provided, under licence, from ComReg. If there is a difficulty from the Algerian station heard at night, ComReg is better placed to take on the reallocation of spectrum issue. I do not believe we can engage in legislation on spectrum management issues where the technology will change in time and where the spectrum allocation is often changed. If we were to get into those details we would be doing in primary legislation what should be done more effectively in the day-to-day work of the relevant authorities, in this case, ComReg, working with RTE.

Unfortunately, we must vacate this room because another committee has booked it. How stands the amendment?

I would like to pursue this matter further and therefore I will withdraw the amendment, with a view to reintroducing it on Report Stage.

Amendment, by leave, withdrawn.
Section 121 agreed to.

We shall be back again in the morning when we shall deal with the Gas (Amendment) Bill 2008. Our consultation on the Broadcasting Bill 2008 will continue on Thursday, 11 December.

I have the wrong timetable for tomorrow. I was not aware that we were discussing the Gas (Amendment) Bill 2008 then. I shall check with my office.

There are no amendments. Can we not deal with it now? However, I realise we must leave the room.

Progress reported; Committee to sit again.
The select committee adjourned at 3.45 p.m. until 9.30 a.m. on Thursday, 4 December 2008.