I welcome the Minister for Communications, Energy and Natural Resources, Deputy Eamon Ryan, and his officials and call on the Minister to address us.
Nominations to RTE Authority and BAI: Discussion.
I thank the Chairman. I am very appreciative that the committee was able to meet at this time to discuss the implementation of the appointment of members to the RTE Authority and the Broadcasting Authority of Ireland, as set out in the recent Broadcasting Act.
It is a useful chance to go over some issues for the information of the committee and of my Department. In my view, this has been a very successful process. It has delivered what we wanted it to do, namely, a much wider consideration of memberships of boards and an engagement by the committee in a very real way in the broadcasting future of the country. The inland fisheries Bill is due to implement similar practice in the future. I commend the committee and the Chairman for the very extensive work they put into coming up with the various names. It was a really good body of work by the Oireachtas commission and I appreciate it.
During this meeting I wish to clear up a number of issues. Last week there was a newspaper report on a hitch that had arisen. I had hoped to resolve this matter before it became a difficulty. It related to a legal question which had arisen regarding the wording of section 12(6) of the Act concerning the appointing of a person to the authority. It states that a person "who holds employment or an interest in a broadcasting undertaking, including but not limited to a public service broadcaster, or an undertaking holding a contract under this Act shall be disqualified from becoming a member of the Authority".
The legal question was asked within my Department just before Christmas as to how that could or should be interpreted. Only in mid-January did I become aware that this was an issue. When I became aware I sought advice from the Attorney General because the primary concern was the broadcasting fund which is set out in the latter part of the Act. Would a person who had been working within, for example, a company working on a project supported by the broadcasting fund be designated as having a contract under the Act? That was the legal question that rose at a late stage. It was right and better to get advice from the Attorney General so that we would have comfort. It does not have anything to do with the people nominated or suggested by the Oireachtas commission but it concerned some people in the independent production sector and related equally to a number of people I had appointed, so it was a matter that had to be resolved one way or another.
I received advice from the Attorney General and I believe we can proceed on that basis. He set out his extensive reading of the Act, looking at precedent and other elements contained within the Act. The wording in the Act is quite different to that concerning some other contracts which are direct contracts set out within the Act. That gives us security in terms of the people I appointed or some of the names the committee may come up with. I believe we can proceed. We are always right to be very careful with regard to such issues. We might suggest to the Broadcasting Authority of Ireland and the RTE Authority that they have a good code to deal with any questions in that regard. If we feel there is any other matter we can look at it in detail at a later stage. If there needs to be any strengthening of the wording, should there be different interpretations of the Act, we can return to it with an amendment when a suitable piece of legislation comes up. Without having to do that immediately, I am confident the legal issue that had arisen is resolvable and the Attorney General's advice is positive and clear. I wanted to make the committee aware of from where the issue mentioned in the newspapers last week arose. Originally a legal question arose in the Department. However, the Attorney General's advice is positive and gives us room to continue.
It is hoped we can proceed to Government on this quickly and I am keen that the people who have been proposed will be able to get on with the public service work for which they have been nominated. The process is evolving as we go through it and we are learning from the experience. I hoped we could have informal discussion on the appointments. Perhaps we could have it here and I could bring those considerations to Cabinet.
One particular issue on which I would like the views of this committee is the issue of financial experience. I wrote a letter on 23 November 2009 regarding both boards in which I said I was looking for someone with accounting or finance experience for the Broadcasting Authority of Ireland and for someone with strong commercial experience for the RTE board. I was keen to get members' views with regard to how that issue is covered. Any other opinions or contributions members wish to make with regard to names being considered and brought to Government are also welcome. I am happy to report members' suggestions or thoughts on the process and how the committee did its work. I am happy to answer any questions on the first issue I raised.
Before I call on the members of the joint committee I wish to make a comment. One issue that arose during the process was that we felt we were hamstrung with regard to appointments to the RTE board. For general balance purposes, we had to select three females and one male because of the make-up of the board at that stage. I mention this for the record.
I thank the Minister for explaining what has been an unfortunate blanket silence on an issue in the public arena for some time. The Minister indicated in January he knew about the problem and I raised the issue a number of times on the Order of Business. I was particularly disturbed that the Chairman of this committee was not kept informed throughout the period. That is not acceptable. Nobody in the House, regardless of his or her political leaning, finds that acceptable. The Minister mentioned that lessons can be learned. I suggest, with all due respect, the Minister should learn that lesson.
With regard to the process, I agree with the Minister and support his venture into what I thought was going to be a co-operative effort, where the Oireachtas committee would be — and was — engaged in a process to come forward with recommendations. The Minister has asked us to comment on that experience. The process was a carefully managed process, but it was also a very enriching experience. I had no expectation that over 200 people of such calibre would present themselves for public service. That in itself made the project worthwhile. I must pay tribute to the Chairman, because the load was on him. I also pay tribute to the secretariat and the Commission for Public Service Appointments for their assistance. Being on a selection board and drawing up a shortlist was a distilled part of the work because all of the preparatory work had been done for us. As a consequence, the committee was able to tweak what it feels was a very robust process. I wish to stress that the effort we put into the process was made while very conscious of the fact that at any point what we were doing could be subject to legal scrutiny. I am absolutely satisfied that the process can withstand such scrutiny at any point.
The Minister has said that the advice from the Attorney General indicates the process was all right. That is only the beginning. Let me revert for a moment to the people we selected. We selected people who fulfilled the requirements of the Act, we complied with the gender balance requirement and were very careful that we ticked the boxes. The question arose whether the same scrutiny and careful examination were carried out with regard to the appointments made by the Minister, but I will not labour that point. In our process, we made an effort to satisfy both the Minister's requirements and, in particular, the requirements of the Act. The main purpose was to ensure we did not stray outside of the law. We are now in a situation where we need more information from the Minister. We are part of the process. Therefore, it is extremely important, before we embark on any new appointment procedure or on making recommendations for appointments, that we have the advice of the Attorney General. I am aware that a Minister does not normally provide that advice to the Oireachtas across the floor of the House. This is not that kind of situation. This is a situation where we are part of the process. As such, it is vital that we have the information available to the Minister from the Attorney General to ensure we do not run into difficulties in the future.
The Minister said the question in this regard arose in the Department, the same Department that drew up the legislation. Riddle me that. Did the question arise by way of a third party outside the Department and did the Department feel that once it had been raised, it had to reconsider what it felt was perfectly sound legislation? The Minister has said he was caught in this situation also, in terms of appointments he made. We need to know the source of the complaint. It is difficult to understand how a Department official would suddenly decide there was a legal problem, when he or she, presumably, had been privy to the entire process, which has been ongoing for over seven years. When something turns up out of nowhere at this late hour, it is difficult to understand how it arose. We need full information from the Minister in this regard.
What is the status of the Broadcasting Authority of Ireland? It has made some major decisions, particularly with regard to the €7.6 milllion budget for this year. Some €1.5 million was already spent by it last year and that will be borne by the broadcasting industry. Members of the committee have all had queries with regard to the legitimacy of the broadcasting levy from a particular radio station. It has argued the point and asked whether, because of the queries raised, the status of the authority is 100% valid. The Minister has said he thinks, now that he has got advice from the Attorney General, that everything will be fine. I get nervous when I hear that. All the way through the process in which we were involved we were guided by the question of whether, if the process was subject to legal action, we could stand over it. I am happy we complied with all procedures.
I am aware the Broadcasting Authority of Ireland is to draw up and publish a code of ethics. The issue of conflict of interest emerges in many authorities — the Arts Council, local authorities and even in the Oireachtas. It is not as if we are creating something totally new. I wonder if there are outstanding issues because the Minister still seems to be a little uncertain. He hopes and thinks he has it sorted. If that is the case, if there are still uncertainties, I ask the Minister to clarify what he means as we are all on the same side in terms of getting this sorted. The sooner we put this to bed the better it will be for everyone, particularly for those eight people waiting and who, in my view, have been subject to some discourtesy.
I welcome this meeting with the Minister because it is important to have clarification on an issue that has been hanging there. People were contacting me to ask about the status of the current boards in the case of RTE and the Broadcasting Authority of Ireland, particularly considering the decisions they had made about levies and so on. We were in the dark up until about ten minutes ago and this is unfortunate when we are supposedly part of the process of recommending four out of nine names for each board.
This committee has done a significant amount of work and has tried to be completely transparent and professional. The Minister has introduced a new system and this committee has done its best to ensure it worked so that an Oireachtas committee would be seen to do a job in a non-politically partisan way and recommend eight suitable people out of a total of 18 people. I would like to think we did this. However, it was a lesson and continues to be so in how not to follow up on a process that was started in very good faith. We should have been informed when a problem arose because we were part of the process. The people involved, who had been nominated or recommended by the committee and who had come through the interview process and the hearing process, deserved to be told what was happening so that everybody would be content that things were happening as they should. This did not happen and as a result, all sorts of interpretations — some totally false — were put on the reasons for the delay. This is a pretty amateurish way to do things. I welcome the news that the Office of the Attorney General seems to be suggesting to the Minister — and the Minister is confirming — there is no conflict of interest or problem with regard to the nominees to the boards. This is welcome news so that we can get on and allow what I regard as people with a pretty good balance of skill sets, experience, vision and ambition, to begin constructing a future for Irish broadcasting.
On the issue of financial experience, some of the people we chose certainly have commercial experience. They may not be qualified accountants but they have commercial experience in terms of running their own businesses. One or two names in particular stand out. I note there is plenty of legal expertise in one case. If there is a need to further bolster the financial expertise on these boards, I would like to think this expertise could be hired and the boards would have the resources to do so if required. There are some smart financial people in the broadcasting sector and in RTE in particular and we need to ensure the board is able to deal with the detail of how finances work in RTE and also across the broadcasting industry in general. Specialist expertise can be bought in if required. We were anxious to provide a broad range of people with experience, understanding and real energy and interest in broadcasting and its future and this was the main priority of the committee when choosing the people. I hope there will not be a continuing delay with regard to this issue and that the Minister can go to Cabinet and we can then look back on this process as the first example of a new way of appointing boards which, by and large, has been positive.
I thank the Minister for the clarification. It is a case of all is well that ends well. However, I must agree with my colleagues. We can put it down to the fact that this is the first time, but as the committee had a part in it, we should also have been part of assessing any problems that arose as a result of our selection. If there was a difficulty, at least the Chairman of the committee should have been brought into the loop.
A fundamental question arises and I suspect the Minister will also want to know the answer as much as the committee and it was already raised by Deputy McManus. The Department draws up the legislation and it is brought through the Houses. If I heard the Minister correctly, it seems at the end of the process somebody pointed out to the Minister a conflict that may arise between what is required in the legislation and how it was implemented by us. There is more to this than just simply sorting it out. I would like to know how we came to find ourselves in this position in the first place. It seems like a case of the right hand not knowing what the left hand is doing.
From the very beginning of the process, as has already been pointed out, the committee designed this process on the basis we would finish up in court. It was stress-tested at every level. We members fought with each other on this committee. We spoke to the Minister informally three times. We had various meetings with advisers and we went step by step. We were ploughing virgin ground and it was difficult to deal with issues such as the confidentiality of applicants, balanced with the need for transparency of process. There was the issue of members of the committee who were not privy to the same level of information as those of us who were involved in the interviews and there was the question of confidentiality. At least we have shown we can hold our water as I do not think there was any leak from that process. However, it was a learning process.
I do not mean to be mischievous and this is no reflection on the individuals proposed by the Minister but in discussions with Deputies Coveney and McManus and with the Chairman, we took into account the legislative requirements for those who were to be appointed and we tried to marry the Minister's people with those points. First, we had difficulty, if I may say that in a soft way. Second, we should not have been required to do it. The next time we undertake this process the Minister should decide. He has attempted to cover many of headings and ticked so many boxes with regard to the qualifications of the nominees. Once we know that, it makes life easier for us. The gender balance among nominees should be achieved at all levels along the way.
The Minister has referred to a reassessment of the legislation. He will recall in both the Dáil and Seanad the question of having public hearings built into the appointments process was proposed. The Minister was not ready to agree to this proposal but he said he would not object to it. He told us informally that it was worth trying out that proposal. It would be useful in the future to include such a provision in the amending legislation.
We have indicated to these nominees that we would like them to come back to us in six months or a year's time in order to assess their first year and to see what we can learn. This committee has already gone through the process, assessed it by giving it marks out of ten and suggested changes.
On the last issue, which the Minister himself raised, I believe every applicant was asked a question on governance, finance, etc. A crucial part will be the board structures that are being established. As I believe it is not specified in the legislation the Minister should now insist that there be an audit committee. The audit committee should be required to report to the board, the Minister and probably to this committee on the governance structures it has put in place and how it has fulfilled those requirements. An accountant is not required to do that. It would be better if it were not done by an accountant because this is implementing what is already in at least three State documents, one of which is "Welcome to the Board", a document issued by the Department of Finance in the past four months to every semi-State body outlining what they should be doing, how audit committees, finance committees and remuneration committees should work, and the basis for transparency. Every member of those boards should go through a process of understanding those. The corporate governance section of the Smurfit business school would certainly organise a very helpful supportive one or two-day course for all members of the board which they should be required to attend. That was not done in FÁS and the simple things were not understood by people.
We can all learn things from this and move forward. I completely subscribe to the points. I just feel we did not get a great deal from the Minister in the past month. I hear his reasons for it and I understand where he was coming from. I am glad it is sorted at this stage. I wish us good luck in the future.
I join the other members in welcoming the Minister. I thank him for the clarification he has given the committee. I pay tribute to him for the initiative he has taken to extend the process of the appointment of members to State boards. We are very conscious that this is the first time this has happened. We all believe it is the correct approach.
I pay tribute to the Chairman and to members of the sub-committee seated on my left who engaged in the process of selection of the nominees for the board. I know they spent considerable time and put much energy into doing so. This committee spent considerable time robustly evaluating the process we initially put in place. We are very confident that we have now developed a template by which other committees, if they are charged with the same task, will be able to do so with confidence that it is a good process. I hope that process will be extended to other committees.
The Minister has taken a very important step. I am not too bothered that there was a bit of a hiccup. It is great that he had the courage to meet us publicly to discuss it. I regard it as taking the first faltering steps on the road to hopefully having a very sound process involving the Members of the Oireachtas in the future appointment of all State boards.
I welcome the Minister. As a former member of the committee system he knows all to well how committees work. He is a very good Minister and is doing a good job. It is not just me saying that, the general public and the national media agree. He was very fair and understanding. It was very good of him to involve the committee. Now that he has learned, he will know what to do the next time.
As many points have been covered, I might at some stage ask my assistant secretary, Peter O'Neill, to come in.
On lessons learned, the issue of gender balance, which the Chairman raised, is difficult. It can be particularly difficult where the make-up of a board may include, for example, people appointed by election or by virtue of their office. That can make the maths, as it were, difficult. There is an issue with the appropriate wording to ensure gender balance. I appreciate that that put a particular constraint on the members. At the same time I stand by the principle of equal balance of men and women on boards. While it was a difficult constraint, it is the right sort of constraint for us to apply.
I agree with Deputy McManus that we should learn the lesson. We try something once and then let it evolve and change it. On the timing, on the return of the Dáil, I contacted the Chairman and the Deputy. I had an issue regarding the finance question and I wanted to raise it.
If the Minister wishes to refer to a private conversation, I am quite happy to put it on the record, but I would not go there if I were he.
I will not mention it. However, I contacted the Chairman to indicate there was a difficulty and it was something I was trying to resolve. I did not want to come back to the committee until I had it resolved one way or the other. I got the advice of the Attorney General yesterday evening and approached the Chairman as soon as I could because I wanted to be quick. I did not want to come here in the absence of the advice of the Attorney General because that would have given rise to further uncertainty. I believe that was right. It would not have been appropriate to come back without clarity and we have clarity at this point.
Senator O'Toole mentioned three contact points. I would go further if I were doing it again. I would come in at each stage in the process. Rather than using letters it would have been better to just come in and sit down to resolve issues. If someone had a difficulty in terms of what was the Minister's consideration or his or her criteria, I would have loved to have come in to outline exactly what I think and I would have been freely available to discuss it in whatever public or other forum possible.
We wrote to the Minister.
That is true and I wrote back. One of the lessons learned is that it would be good to sit down and talk. We would not have had certain issues. For example, when I wrote back stating that it was vital to have an accountant, members of the committee could have asked why. We could have had different views over whether it is right to have an accountant on an audit committee.
The question would have been why the Minister did not appoint one.
The more discussion of that the better. The law is a matter of interpretation. On my interpretation of the criteria for membership where we list 12 criteria, I do not see that as requiring one of each of them. It is a general guide to whatever——
We had at least one or two meetings to determine whether the 12 criteria should get equal ratings or different ratings; whether some of them are essential and others desirable; and whether we should use some of them as certain and others as being an add-on when deciding between two people. It would have been very helpful for us to have had that discussion with the Minister.
I agree. I would have been very happy to chew over those facts and in future I shall be very happy to spend the time doing so.
The Minister might have picked up a few lessons on the ministerial appointments also.
Absolutely.
In terms of gender balance.
I shall be all ears.
The advice of the Attorney General is very clear and gives us real confidence that we can proceed. What I said in terms of a code of practice or possibly reviewing the wording just reflects good practice as we should always continue to review legislation and ensure that the codes that are in place are appropriate and help people. I do not believe I can supply the advice of the Attorney General. That is not a precedent we can set.
On a point of information, the entire process is unprecedented.
It is.
We are liable in the event of any legal challenge for what we do. I would feel very strongly about this and if needs be we will need to pursue it further. We need to be certain about our actions. The advice of the Attorney General to the Minister is part of the machinery that can support us in what we are doing because this will happen very shortly. We will need to recommend other appointments.
I cannot——
Not to have the advice of the Attorney General leaves us at a disadvantage.
There is a long-standing precedent that the advice of the Attorney General is not made available, but I can give guarantees, certainty about my appointments as well as those suggested by the Oireachtas committee, that the advice of the Attorney General is clear regarding the issue I raised. I am confident that we should proceed on that basis.
I might ask Mr. Peter O'Neill to come in because some people asked about the Department's legal advice. It is absolutely right that the Department should continue to check to ensure we have all the procedures and legal systems correctly in place.
Mr. Peter O’Neill
Members will be aware that the Broadcasting Act 2009 excludes certain people from the board. The Minister has already mentioned section 12(6) of the Act, which provides that "a person....or an undertaking holding a contract under this Act shall be disqualified from becoming....a member of the Authority". No difficulty under section 12(6) arose with any of the people nominated by the committee or appointed by the Minister. However, an issue arose when officials from the Broadcasting Authority of Ireland and the Department met to discuss the broadcasting fund, rather than the nomination process we are discussing today. In the course of that meeting, reference was made to somebody from the authority in the context of contracts under the broadcasting fund. While the broadcasting fund was provided for in the 2009 Act, the manner in which it is set up is a matter for the authority. There is no reference in the Act to contracts under the broadcasting fund. When the official returned to the Department, she raised the use of the word "contract". She wondered whether a contract under the broadcasting fund can be said to be a contract under the Act and asked whether this might have implications for appointees. At the time, I did not think such implications would arise but I felt it was prudent to get legal advice on it. If it was the case that a contract under the broadcasting fund could be said to be a contract under the 2009 Act, it would have had serious implications, particularly for people who had already been appointed and perhaps for decisions that had been made by RTE.
If that were the case, the Act would be unworkable because anybody with a potential connection to the industry — even somebody employed in RTE — would be deemed to have a contract under the Act.
Mr. Peter O’Neill
Exactly.
It could not be the case.
Mr. Peter O’Neill
I agree, but we felt it was prudent to check it out.
Yes.
Mr. Peter O’Neill
The implications would have been quite serious. When it was checked out with the Attorney General, he said there was no difficulty with it.
What is a contract under the Act?
It could be a contract for a radio or television broadcasting licence. The contracts are clearly defined in specific detail in sections 6 and 8 of the Act. Although the broadcasting fund is described in the Bill as a "scheme"——
Yes.
——it is governed by a contract, just like any transaction. The legal question was whether the contract that operates beneath the statutory level of the scheme would disqualify someone from being a member of the authority. The Attorney General's answer was "No".
If somebody runs a radio station that has a contract under the 2009 Act from the Broadcasting Authority of Ireland, would that disqualify him or her from being a member of the authority?
I imagine that it would.
I understand that one of the people nominated to the authority has a local radio licence.
No, not currently.
He had one in the past.
Okay.
It is complex. It is not easy. The new legislation has put in place a new procedure. It was decided that it was best to get the Attorney General to clarify the legal question that gave rise to this uncertainty. Advice on the matter was received yesterday evening, as I have said.
I could spend much longer talking about this process. I look forward to getting updates and comments from the committee on the operation of this process, in which I absolutely believe. Oireachtas committees work, which is why we need to give them more responsibility to engage directly with the issues. The best way to do that is to give them the ability to nominate people to boards. I commend the members of the committee on the exemplary work they have done. I am absolutely satisfied with the names that have been proposed, which I will bring to the Government, as set out in the legislation. I will give my Cabinet colleagues a sense of the conversation we have had. We will take into account the specific question of whether an audit committee needs an accountant. I will report back to the committee thereafter. I hope we will be able to proceed with the nominations at that stage.
I thank the Minister. I am glad this process has been brought to a conclusion for the individuals involved. We spent a full meeting evaluating the process that has been used. I believe the changes we have made to the process have strengthened it. I will give the Minister a copy of the document detailing those changes, which has been circulated among the Members of the Oireachtas.
I asked a question about the status of both boards. I accept that the Minister is satisfied that the Attorney General has advised there is no problem. I would like to see that advice because it is pertinent to our job. Will the absence of so many people from the two boards become some kind of issue?
No. It has been designed in a way that ensures the board will have a quorum even in the absence of nominations from the Oireachtas committee. I am keen to get the boards up and running quickly. There will be no difficulty with any decision that might be made.
Very good.
I thank the Minister and his officials for attending this meeting.
The joint committee adjourned at 6.45 p.m. until 9.45 a.m. on Wednesday, 3 March 2010.