Wednesday, 13 October 1999
Dáil Éireann Debate
The purpose of this amendment is to ensure that the Minister must designate events, rather than having the option to so do. My recollection was that she saw no objection to the amendment on Committee Stage and said she would return to it on Report Stage. I am seeking to ensure that events would be designated, rather than that they “may” be designated.
Minister for Arts, Heritage, Gaeltacht and the Islands (Miss de Valera): The amendment proposes, as the Deputy said, to change the word “may” to “shall” in the first line of section 2. This is designed to remove the discretion with which the Bill provides me, as Minister, in making the order designating certain events as events of major importance.
In responding to this proposal on Committee Stage, I indicated I was not opposed, in principle, to the amendment, but that I needed to take further advice on the matter. I have been advised by the Office of the Attorney General that there is some merit in retaining the element of discretion, as provided in the Bill. To accept the proposed amendment would oblige me to designate certain events as events of major importance to society, and it would be very difficult to be certain which, or how many, events should be designated. There would be a risk that parties that might use the opportunity to attempt to compel the Minister to exercise the power in favour of a particular sporting activity. The proposed amendment would not sit well with the extensive consultation procedures provided in section 3, which suggest that a sporting body might at least put forward an argument against designating a particular event.
Mr. O'Shea: I am disappointed by that response because, as the Bill stands, it is possible that an order will not be made under it for the first six months after its enactment. That would be regrettable because the reason this legislation is before us to afford certain concessions to the viewing public. If the Minister does not make orders, how will this affect the situation where, for example, the Act will only deal with events that are acquired in the future rather than ones which are in the ownership of particular broadcasters at the time the Act is brought into oper ation? The Minister's arguments seem quite flimsy. It is more than reasonable to expect the Minister to make an order under this legislation.
Miss de Valera: As I said in my initial reply, I said on Committee Stage that I had a certain sympathy with this amendment. That is why I undertook to examine the matter further, which I did. I am taking the advice of the Attorney General on this matter. The question of consultation is extremely important in regard to this Bill. We do not want to be seen to be curtailing what I wish to be a very extensive consultation process. It does not mean that the consultation process must take a long time. It does not need to nor will it take a great deal of time. I hope that, once the Bill is enacted, the consultation period will be completed within a two month period. I cannot take on board the question of retrospection. The Deputy referred to this and there is an element of that in a later amendment in his name. For the reasons stated, it is best to proceed as I have suggested and I am not prepared to accept the amendment.
Mr. Kenny: I support Deputy O'Shea's amendment. Is the Minister prepared to give us the Attorney General's advice in this matter? Deputy O'Shea also tabled this amendment on Committee Stage. What clarification has the Attorney General given the Minister in this regard? Is it because, if the word “shall” is inserted – that the Minister shall by order designate certain events as being worthy of free to air coverage by a qualifying broadcaster – she might then change her mind and something initially considered of major sporting or cultural importance might not be seen to be so after a few years? Is it for that reason she does not wish to be as definite by substituting “shall” for “may” and because it allows her or her successor the freedom to have something included or excluded depending on what is the word? Will the Minister elaborate on the advice the Attorney General gave her? What did he say? How did he clarify that this should be “may” and not “shall”? I would like to know what the Attorney General said to the Minister. I would like to know the advice he gave so that we can, in the context of Deputy O'Shea's amendment, have this Bill as correct as we possibly can.
Miss de Valera: I have already referred to that in my initial reply because Deputy Kenny wanted to know the advice of the Attorney General. I was advised by the Attorney General's office that there was merit in retaining the element of discretion as provided in the Bill because to accept the proposed amendment would oblige me to designate certain events as events of major importance to society and it would be difficult to be certain of which or how many events would be designated. There would be a risk that parties might use the opportunity to attempt to compel the Minister to exercise the power in favour of a particular sporting activity. The approach adopted by both  Deputies would also not sit well with the extensive consultation that is in mind.
I want to put Deputies' minds at rest on this. There is no reason not to expect that such an order will be made. That is the object of this Bill. It gives me the power to make such an order. That is the philosophy behind it. I wish to reiterate that I will be directly accountable to the Dáil on this. It will not be a figment of my imagination. I said on many occasions in the House that this will be done on foot of extensive consultation – some has already taken place between my Department and the Department of Tourism, Sport and Recreation even before the Bill is enacted. When it is, we will obviously be able to proceed further with public consultation.
Mr. O'Shea: I find the Minister's logic circular. Surely there is no point in enacting this Bill if orders are not made under it. Surely there should be an onus on Ministers to make an order or orders. If an order is not made, where stands the public in terms of access to certain events on free to air television? What happens if an order is made by the Minister and, at a future date, a decision is taken to add to it, or another order is made adding to the list of events, or, for some unforeseen reason, an order is rescinded and an event is removed from the list of designated events? The logic is circular and weak and there is no reason for not making this change. The basic argument is that, as the wording stands, it could well be that the Minister would at no time make an order under the legislation. I accept that that is unlikely, but it is illogical to leave the provision whereby the Minister could make no order under the legislation.
This is an amendment which I tabled on Committee Stage. As the Bill stands, there is no time limit for the making of the first order under the section, and this should be provided. My amendment on Committee Stage provided that the first order should be made within four months. We now suggest six months. The Minister said she would not tie the hands of the Oireachtas. All we ask now is that she makes her proposals within six months. On Committee Stage I said I would look again at my amendment and this is the  formulation at which we arrived. We seek for the first order to be made, not within four months, but within six months of the passing into law of the Bill.
Miss de Valera: The purpose of amendment No. 2 seems to place a definite time between the enactment of the Bill and the making of an order designating events of major importance to society. I hope it will be possible to make an order in the timeframe envisaged in the amendment. However, I am not prepared to accept the amendment on principle as it would artificially cut short the consultation process which is envisaged in section 3. In any case, the wording proposed is neither appropriate nor acceptable.
Mr. Kenny: Perhaps the Minister will clarify the mechanics of the consultation process? This obviously has a bearing on the amendment tabled by Deputy O'Shea. He now suggests six months and the Minister stated in her reply that that would artificially constrain the business. What are the mechanics of the public consultation? How is this to be brought before the public? How is it to be involved? Will it be by public meetings, advertising in the press or people in the Department or major sporting organisations being brought together to discuss their views on major sporting events? Is there a timescale in the Minister's mind on the process and, subsequently, on the analysis of the reports and indications of preference received from various organisations? When will we have a list of designated events? Will it be before the middle half of the year 2000 or will it drag on longer than that?
Deputy O'Shea's amendment is reasonable in the sense that the consultation process is already under way to an extent. How long will it take to complete the Bill and have it signed by the President, allowing a few weeks' latitude for redrafting at the end? The public is very interested in seeing what will emerge. The Minister may recall my outburst recently when I wanted, prematurely, to have a list which would have included the Ryder Cup. I received much correspondence from around the country from frustrated champion golfers who were not able to see this. Following whatever coincidences or intervention, Mr. Murdoch sent it to some parts of the country at least. As one who is interested in quite a range of sports and who has received quite a deal of queries from the public about this Bill – I was surprised by the amount – I would like the Minister, in the context of Deputy O'Shea's amendment relating to the period of six months, to clarify the mechanics of the consultation process, how it is to be operated and when she expects it to be completed. Then we can see whether the six months is an artificial constraint.
Miss de Valera: With regard to the consultation process, the Department of Tourism, Sport and Recreation and my Department have already initiated consultation because we felt it could be  done in tandem with other work that is being done on the Bill. Once this Bill has passed through both Houses – and since it was initiated in the Seanad it will go back there for a final tidying up – we will go ahead with the further consultation process. That will take into account the views of event organisers, broadcasters and the general public. With regard to consultation at that stage, I would consider about two months a relatively good amount of time for people to consider and come back to us on it. It is something that has attracted a good deal of interest and support. Once we have correlated all that information, we will be in a position to draw up the list. I certainly hope we will be able to make the order within the time frame that has already been referred to here. That is the time scale we have in mind.
Mr. O'Shea: I am still dissatisfied with the situation in the sense that theoretically it is possible under the legislation as it stands that no order will be made by the Minister. Remote as that possibility may be, that is my interpretation of what is here. Also, as is clear from the debate, all sides of the House support the thrust of the Bill and what it seeks to achieve. However, deadlines are important in terms of focusing action and thought. The rationale of the amendments which I put down, the amendment on Committee Stage seeking that the order should be made within four months, and this amendment which seeks to have the order made within six months, is precisely to achieve that. I am not questioning the Minister's good faith in terms of processes that are ongoing, but the people who sent us here generally get a better deal if there is a deadline by which certain steps must be taken which provide for measures that add to their quality of life and, in this case, the extent of their television viewing. It is particularly important to the less well off in our society that certain events are not the exclusive preserve of pay-per-view or subscription television. We support the Minister in what she seeks to achieve. I am just concerned that if there are no clearly stated deadlines, action will not be taken as quickly as it might otherwise be.
Miss de Valera: I can understand the Deputy's concerns about this. Like him, I want to see this legislation enacted as quickly as possible. Therefore the list must be an effective list. This comes down to the whole approach to drawing up the list. I strongly believe in proper consultation, as does the Deputy opposite. It should not just be a cosmetic exercise so that we can say we have consulted people. I want genuine feedback from the public because they are the people who will decide on the kinds of sports they want to watch. That is what I want mirrored in this legislation. I assure the Deputy that I am looking forward to making the order and hope I can do so at the earliest possible moment. I am anxious that this should be done.
I am not saying that the amendment would cut short the consultation process but it could do so.  I do not wish to in any way stifle what I believe will be a very healthy debate on the major cultural and sporting events in this country. We have a tremendous history and heritage with regard to our sporting and cultural events. We have so much that could be included on the list. It must be remembered that we are talking about significant and major events. I am sure we will have very many suggestions as to what should be on that list, not least, perhaps, the Ryder Cup to which Deputy Kenny referred. Again, it is not a question of any of us here deciding that certain sporting events should be on the list. The whole purpose of having the list is to have a proper consultation process, as happened in Britain. We can learn from other countries that have gone through the process of transposing that part of the Television without Frontiers Directive into their own law. That is what we are doing with regard to this legislation and that is why I would not wish to do anything which could impinge on the consultation process. I assure the Deputy that what I want is to be able not only to see this Bill go through both Houses of the Oireachtas but to see it enacted in full.
Mr. D. Carey: I will support the amendment. I am concerned that the Minister is postponing matters again. While she says her objective is to have the widest consultation, it is known what the main sporting events here are. That is well known to the Minister and her officials. There is no problem. If a person wants to get tickets for the All-Ireland from the GAA he telephones the GAA and the officials or the Minister will see that a person gets his tickets for the All-Ireland. Rugby is the same. The FAI is the same. It is quite certain special tickets—
Mr. D. Carey: Deputy O'Shea is trying to get the officials to tidy up this Bill as quickly as possible and get it passed. Deputy Kenny is talking about the exclusive Ryder Cup. As far as that game is concerned it has been studied and filmed again and again. Deputy O'Shea is trying to see that this matter is expedited. I appeal to the Minister to at least answer him positively. The Minister is arguing about using the word “could”. We want to get this up and running quickly. We are way behind the UK. This matter was spoken about, as far as I can recall, in 1996. I thought then that it would be quickly expedited. It is almost four years later.
The amendment requires the Minister to take all the circumstances into account, in addition to the criteria provided in section 2(2), when consider ing whether to designate any event. Accordingly, I am prepared to accept the amendment, which has been proposed in my name and in the name of Deputy O'Shea.
This issue was discussed on Committee Stage and I received a subsequent letter from the Minister. She has dealt with the matter in some depth and it would appear from the information she has given me that there is a difficulty as to whether a specific provision is mandatory. If sections of the EU directive are not mandatory any order made by the Minister under this legislation can be subject to court challenge. Will she elaborate on this aspect? How strong will such orders be?
Miss de Valera: As indicated on Committee Stage, I am concerned that the addition of the words “or enjoys” in lines 11 and 17 of page six could be seen as giving the Bill retrospective effect in relation to contracts already entered into and might weaken it were it to be the subject of a legal challenge. As our broadcasters provide free to air coverage of events to which they have acquired the rights, I do not believe the amendment is necessary. On balance, it would be safer not to proceed with it and I therefore cannot accept amendments Nos. 4 and 5.
Mr. O'Shea: Will the Minister address the point I raised about whether orders made under the legislation are weak in the context of a court challenge, especially given the point made in her letter to me that sections of the directive are not mandatory and do not have the protection of being mandatory in the context of such challenges?
Miss de Valera: There are two issues here. In the first instance if the amendment was to be accepted it would weaken the Bill because of potential court challenges. Second, broadcasters, or at least our indigenous broadcasters, provide free to air coverage of events to which they would have acquired the rights. In view of this the amendment is not necessary. An order made under the legislation would enjoy the presumption of constitutionality but where a provision in the directive is not mandatory statutory legis lation is necessary. This is a legal point and we need to tread carefully when interpreting it. I would not want it to weaken the Bill in the event of such a challenge and the inclusion of this amendment would do so. Given that our broadcasters provide free to air coverage, the amendment is unnecessary and acceptance of it could create a legal risk in the event of a challenge.
Mr. O'Shea: The legislation does not address the situation where broadcasters have acquired the rights of certain events into the future. I am not aware of the extent to which they have obtained the rights to such events, but I am sure the Department has considered this. Is it the case that under the terms of the legislation certain events will be outside the remit of orders made by the Minister because of contracts entered into either before now or before the legislation is enacted?
This is a drafting amendment. I propose to delete “or (2)” on page 7, line 5. The original section 4(1) was deleted on Committee Stage. As a result there is a consequential amendment to section 7(1) and this amendment deletes the reference to section 4(2), which is now meaningless.
In page 7, line 9, after “event” to insert “which shall be calculated having regard to the public interest which led to the designation of the event under this Act, in addition to normal market considerations”.
The amendment seeks to ensure that the public interest is brought to bear when making calculations prior to application to the High Court. Given that the Maastricht Treaty provides for free competition but the Amsterdam Treaty contains a protocol which refers to public service broadcasting, will the Minister confirm that legislation must reflect the public interest as well as the market? If the public interest is taken into consideration when arriving at a reasonable market rate for television coverage, it is important that the public interest be included as criteria for assessment to the same extent as the market.
Miss de Valera: I recall the debate on this on Committee Stage when I indicated I was sym pathetic to the proposal and would give it further consideration. The amendment seeks to ensure that when dealing with a commodity in which there is an inherent public good, the High Court takes this into account when reaching a decision. However, I have been advised by the Office of the Attorney General that to prevent the court from ordering the payment of a rate which would be available on the market would invite difficulties where the State had not made provision to compensate a broadcaster or an event organiser who would suffer a loss because of a difference between a reasonable market rate and a rate which would take account of the lower price obtainable where the public interest would have to be taken into account. As broadcasters operate in a free market at present, it would be more appropriate for them to pay the market rate than to look to the State for any difference in price.
Miss de Valera: That is not directly relevant to this issue. The difference in which the Deputy might be interested is the difference which might arise between what could be seen as a fair market price and the price arrived at as a result of the public interest in the matter. The whole question of compensation could come into play here, which would mean having to adopt a different philosophy. This is not the way forward because it would mean rewriting the Bill. I have given the matter a great deal of thought and, in the circumstances, while we talk about a fair market rate, we must endeavour to interfere with the market to the minimum degree. The Bill endeavours to achieve the fairest price possible, both for the general public who wish to view these sporting events as well as for the event organisers and broadcasters.
Mr. O'Shea: I still feel strongly that the public interest should be used by the High Court as a measure in arriving at a reasonable market rate for particular events. In light of what the Minister has said regarding her examination of this issue and the legal advice she has received, I do not propose to pursue the amendment. However, if her only reason for not doing so is the extensive redrafting of the Bill—
Miss de Valera: No, that is not the reason. The reason is that the philosophy behind the Bill would change and what we have at present is the way to go forward. I would not like to see the weakening of an otherwise strong Bill which should be given a chance to work.
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