Tuesday, 20 February 2001
Seanad Eireann Debate
Mr. Ryan: On a point of order, grouping is by agreement. I request the Chair's indulgence in that we have a chance to look at the groupings before we move on to the business. It is impossible to agree something without the chance to refer to it.
“‘community broadcaster' means a broadcaster which is or is owned by a non-for-profit entity, the structure of which provides for membership, management, operation and programming primarily by members of the community in question, the programming of which is based on community access and reflects the interests and needs of the community in question;”.
This is the beginning of an endeavour by me and my party to get away from the slightly provincial concept of community that is contained in the Bill. Later we will refer to the removal of the word “local” as an adjective before community. There are communities which are not geographi cal communities but which are real communities, of which those of a single faith would be one of the most manifest. In some cases they are scattered throughout the State while in other cases they may be only in certain parts. They are communities of interest in terms of styles of music and many other issues. They are real communities with a strong sense of identity. The Irish language community, particularly outside the Gaeltacht, is a clear example of such a community.
We are seeking to broaden the definition so that the term “community broadcaster” is not hijacked by people who claim the name of community broadcasters and who perhaps are not involved for entirely altruistic, community or social purposes. We are seeking to insert into the definition section a definition of “community broadcaster”, the wording of which is five or six sentences long.
Dr. Henry: I congratulate Senator Ryan and his party on tabling the amendment. It is important that we look at the word “community” in a broader sense. Senator Ryan has explained it ably, but as society becomes more diverse, this could become more important. It would be good for us to recognise this at an early stage.
Minister for Arts, Heritage, Gaeltacht and the Islands (Miss de Valera): I see no advantage in inserting the definition of “community broadcaster” contained in amendment No. 1 into the legislation. In the context of an ever changing broadcasting environment, there might be a distinct disadvantage in losing the flexibility which has allowed the commission to proactively support the community sector. However, many of the elements which are highlighted in the proposed definition are already contained in section 39. Rather than impose a definition which would apply in every case, it is sufficient to require the commission to consider these issues on a case by case basis and I see no reason to tie the hands of the Broadcasting Commission of Ireland to a particular definition. Accordingly, amendment No. 1 should be opposed.
Mr. Ryan: One of the fascinating aspects of Committee Stage is the way at one stage in history it is deemed that a definition is a bad idea while later something happens in the parliamentary draftsman's office and a definition becomes a good idea. I remember delaying the House considerably the summer before last during the debate on the copyright legislation because of the absence of a definition of the Internet. I now find in the Broadcasting Bill, produced somewhat later than the copyright legislation, that an attempt, however peculiar, is made at defining the Internet. I presume in a later broadcasting Bill that what is now deemed to be unnecessary or excessively prescriptive, that is a definition of community broadcaster, will have to be revisited  because some of the people classified as community broadcasters will manifestly not be such.
A part of a local radio station in my home area which was set up as a community owned broadcasting station transmogrified itself over a number of years into a highly commercial countywide radio station, the sale of which will make millionaires of two or three of its owners. I would like someone to explain how a community broadcasting service set up initially by members of the local community to provide a community service turned into a commercial service without anybody anywhere having a legal base to reflect on it. This is why it is important to distinguish between community broadcasters and those who claim to be community broadcasters but who are not. That is why this definition is necessary; otherwise community broadcasting services which become popular will become commercially attractive and will be transformed into commercial stations, out of which individuals will make money.
The problem with that is that we regulate our broadcasting with limited numbers of stations and limited definitions of “community”, as they become commercial, the less appealing parts of the radio stations' service become further marginalised, as in my home city, a city which produces some of the best hurling and football teams in the country. The local radio station based in Cork city does not cover live sport. It leaves that to the county station because of a commercial decision, not because of a community broadcasting consideration. That is what happens. What starts off as community radio becomes commercial once it is successful. Where interesting experiments with community broadcasting turn out to be extremely successful, people who believe they can make a few bob out of it infiltrate themselves into it. There is need for a definition. I do not think the Minister has addressed the issue of the transformation that can take place.
Miss de Valera: I have given this matter a great deal of thought because, obviously, we had a great deal of discussion on it in the other House. All the issues that had been raised there are being raised here. Community broadcasters are an important part of the Irish broadcasting landscape. Under the provisions of the Radio and Television Act, 1988, the Independent Radio and Television Commission has facilitated the establishment of a vibrant community radio sector, despite the fact that the 1988 Act is silent on such services. However, the legislative flexibility in this regard has allowed the commission to develop a policy in relation to community radio in consultation with interested community groups. The policy document which the commission has published includes a working definition of a community radio station, which is mirrored in the Deputy's proposed definition of a “community broadcaster”, and a commitment to continue to define “community broadcaster” as a distinct strand in Irish broadcasting. Accordingly, I see no  advantage in inserting a definition in this legislation.
Miss de Valera: The words “contemporary cultural expression” were inserted in the Bill in the context of the protocol to the Amsterdam treaty. The protocol recognises that the system of public service broadcasting in the member state is directly related to the democratic social and cultural needs of each society and accepts that it is within the competence of the member states to define the public service remit of broadcasters as they see fit and to provide for funding for broadcasting organisations for the fulfilment of that remit.
Accordingly, section 28 is designed to provide greater clarity as to what is expected in fulfilment of its public service remit by RTÉ. The insertion of the words “contemporary cultural expression” is designed to ensure that RTÉ could continue to support RTÉ's performing groups such as the National Symphony Orchestra, the RTÉ Concert Orchestra and the RTÉ Vanburgh String Quartet. The limits Senator Ryan proposes to set on contemporary cultural expression could limit the options of the authority in an unhelpful way. The orchestra is a national treasure but I am not sure it could be said to promote citizenship. I do not wish in any way to dilute the intended effect of the provision by defining it in any other context. Accordingly, I must oppose amendment No. 2.
Miss de Valera: Amendment No. 3 refers to the definition of free-to-air service. The objective of this amendment seems to be that only broadcasting services with public interest objectives can be regarded as free-to-air television services. This would seem to prohibit the possibility of a commercial television service being provided as free-to-air service. I cannot see how this can be regarded as an improvement as it seems to fly in the face of reality. A free-to-air service is a free-to-air service regardless of whether it is provided as a public interest or has commercial objectives. I believe the amendment should be opposed.
Mr. Coghlan: There should be greater scrutiny of the content of any new additional channels which receive “must carry” status introduced by TV3, TG4 and RTÉ. I would like to be assured that these new “must carry” channels are licensed so as to impose public interest conditions on the content of the channel. There is no objection to carrying clear public service channels such as currently produced by RTÉ. However, if TV3, for instance, were to introduce new additional channels and were obliged to carry them instead of other channels, there is a risk that it could be a shopping channel or a channel featuring repeats of Jerry Springer and excessive advertising.
I ask the Minister to include a provision in the Bill requiring the Broadcasting Commission of Ireland to ensure that public interest obligations, for example, that a certain percentage of production must be Irish and in the public interest, be attached to the licence which TV3, for example, would receive in order to introduce new channels. For that reason, I ask the Minister to accept the amendment.
Mr. Ryan: There appears to be no definition of analogue broadcasting, about which I am a little bit confused. I have read extensively on this issue but I cannot understand it. Perhaps analogue broadcasting is defined in earlier legislation.
Who thought up the definition of the Internet because there are better definitions? The Bill states that the Internet means the system commonly known by that name. That is straight out of Alice in Wonderland and is an inadequate legislative attempt to grapple with something which in another ten years will make a lot of this legislation irrelevant. However, we can discuss that issue later.
Miss de Valera: Regarding analogue, I do not understand the question posed by the Senator. I am sure he is aware that this legislation deals with the issue of digital television and the role out of digital television. In relation to the definition of the Internet, it means the system commonly known by that name. At its most simple, the Internet is a network of computer networks which allows users to communicate with others via the worldwide web, electronic mail, discussion groups and chat sessions. That is the normal definition as I understand it. Given that the Senator was worried about the definition, it is  strange he did not table an amendment to that effect.
Mr. Ryan: Let me be very clear on this matter. It is the job of the Opposition to raise issues. I do not have at my disposal the resources of either the Minister or the Parliamentary Counsel. I try to be constructive but I also reserve vigorously the right to suggest that Government ought to think about issues, particularly issues where considerable resources are needed. The reason I raised the question of analogue is that the transmission company has among its obligations an obligation to provide analogue services. Since most of it is digital, I would have thought a legal distinction between analogue and digital somewhere in the legislation would have made everything much clearer. That is simply my view. Perhaps the definition is included in earlier legislation and I missed it. If it is not, I would like to know why there is no attempt to do so. Something as complex, difficult and hard to put one's hand on as the Internet has been defined, yet we have not discussed analogue. We could at least say it is not digital.
Miss de Valera: I would never question a Senator's right to propose anything to the Government of the day. That is his right and I respect it. Analogue broadcasting does not require a definition, but the definition of the Internet is necessary to distinguish it from broadcasting. The legislation deals with the onset of digital television.
Mr. Ryan: The Bill provides that the term “contract” does not include “any contract that comes into being between the multiplex company or the transmission company and another person by virtue of the entering into arrangements by the multiplex company or the transmission company with that person under section 13(1) or 14(1)”. Why is it so defined?
Miss de Valera: The purpose of the provision is to ensure that contracts entered into by the transmission company under section 13(1) or by the multiplex company under section 14(1) for the transmission of, or carriage of, television services are not subject to the general provisions of the Bill in relation to the content contracts. Under the Bill the Broadcasting Commission of Ireland will have various powers and obligations to include certain conditions in contest contracts, which are only intended to apply to such contracts, and the definition of a contract removes any doubt about this.
Mr. Ryan: I am not sure the public realises that the days of buying a television, a television licence and watching programmes without further charge are at an end. The Bill provides that free-to-air service “means a broadcasting service for the reception of which no charge is made by the  person providing the service”. A broadcasting service is not the same as transmission or digital encoding. It is possible within this definition that programmes could be made for which the person providing the programme could not charge, but the person providing the transmission or multiplex service could charge. Is that what the Minister intends?
Miss de Valera: We have indicated that we are not imposing a time limit on when analogue broadcasting will cease because we consider that the best way to proceed is for digital television to be phased in. Some countries are considering a period of 15 years during which analogue will disappear and digitalisation will take over.
The reference to free-to-air service is to provide an opportunity to the consumer or the citizen to access those programmes that are free-to-air. The Senator will be aware that the House debated pay per view broadcasting when it considered legislation I recently introduced. I share his concerns about increasing the scope of pay per view broadcasting, but this aspect of the Bill is concerned with ensuring that free-to-air broadcasting can continue.
Mr. Ryan: Section 14(4)(c) provides that the multiplex company may impose charges on a person “in respect of the provision by it to the person of any apparatus or device enabling the reception by the person of broadcasting services (including free-to-air services) in a digital form”. This is not being guaranteed as a once-off charge or something which could be incorporated into the purchase price of a television. I think this was mentioned in the Minister's speech and there could be an annual rental for the use of it. The principle that people can buy a licence, buy a television and watch television programmes which are free-to-air is being abolished and it is being replaced by a principle where people could have continually to pay a fee to access digital services as well as pay their licence fee. That is a major change in public policy. I know it is diluted by the timescale under which analogue services are to be phased out. However, it is quite likely that in the United Kingdom analogue services will be phased out in a considerably shorter period than 15 years mostly, it appears, to coerce a reluctant public in Britain to take up digital services which many people are not too pushed about.
This is an issue in the debate on broadcasting on which perhaps we do not spend much time. In spite of the multiplicity of channels, most people still watch the same four or five channels they have always watched and are not particularly keen to pay more for more services. What we are effectively saying here is that in the medium term, that is, ten years or 15 years, there will be no choice and people will be required to pay not only for the television licence, but for the right to view programmes which are under this definition free-to-air as distinct from pay per view which is a separate issue.
Miss de Valera: It is important to make the distinction here. The choice is that if we do not wish to change the system, we do not go with digital and stay with analogue. That would be a very retrograde step and we should not stay with the status quo. The Senator has not made the necessary distinction between having to pay for the hardware – in other words, the equipment to view – and the question of free-to-air services which are delivered free by broadcasters. Paid television services and subscription services are obviously here to stay and we can have a long debate about that as we did on previous occasions. Because that would seem to be case, we need to distinguish between them. Section 14(4) prevents charges for the free-to-air services currently available so there is the protection. The Senator, however, has not made the distinction between having the hardware in place to receive digital television and the free-to-air service which will follow on.
Mr. Ryan: The Senator is perfectly clear in his head. Let me give an example. Currently, one needs the equipment in a television set to take an analogue signal and convert it into a picture that is viewable on a television screen. For instance, a computer monitor has, in terms of its tube layout, the same technical specifications as a television tube but it lacks the additional equipment to convert a television signal into an analogue signal into a picture. One can buy hardware or software which will enable that to be done.
Traditionally, we have bought television sets which, of their nature, convert analogue signals into viewable pictures. It appears that what we will do in the future is buy television sets which cannot convert digital signals which are free-to-air per se into viewable pictures. We will have to buy or rent something extra on which it appears the multiplex company will have an effective monopoly. I have no problem with pay per view – let those concerned deal with people in the way they wish. However, this legislation provides that when we have digital only, anybody who wants to watch digital television will have to buy or rent additional hardware. I am not even being told it could be bought once and would not have to be bought again. What we have here is a recipe for a continual further charge by an effective monopoly, whereas the correct way would be to facilitate the integration of the decoders for free-to-air digital broadcasting into the television set. That is the way it ought to be done. There should not be an effective monopoly of the multiplex company, allowing it to charge indefinitely.
Mr. Mooney: To resolve this impasse I suggest to the Senator that digital technology is currently available through a television set. However it is  extremely costly. If one were to purchase a digital television set with the encoder built in, I understand the cost would be between £1,100 and £1,500. As we know, one can buy an analogue television for £70 to £80 and the new wide-screen technology set which is not digital would cost about £1,500. Black and white televisions are practically being given away. To introduce digital technology in this and other countries Sky Television, with Eircom and various electrical retail outlets in this city, have been encouraging people to access digital television by purchasing a set-top box. It is, as the Senator said, like a computer, one needs the extra hardware to access digital television.
It is rather interesting that when this set-top box was introduced only a few years ago it was quite expensive, prohibitively so, but it is now only £50. If one wishes to access it one pays a once-off charge of £50 and then gets free-to-air digital services from the satellite. If one wishes to subscribe to Sky Television there is obviously an extra cost.
I suggest to the Senator that in the context of the section he is referring to, it is possible that at some time in the future digital television may require further technology in order to enhance the picture. I am not saying it will, I am only suggesting my interpretation. Provision should be made in the Bill to allow that the service provider may – not will or shall – impose an extra charge. I interpret that as referring to the hardware, not delivery of the service. The option is still the customer's. The only reason that I am progressing the argument along these lines is that we have already seen an evolution in technology that goes way beyond what any of us would have imagined even five to ten years ago. It is, therefore, not beyond the bounds of possibility that technology will move to another stage. It is already happening in the mobile phone sector with the third generation technology, and I do not see why it should not happen with television technology also.
In the context of the Senator's argument I see no difficulty whatsoever in that the section we are dealing with specifically refers to free-to-air services, which is the actual programming from my television. If I wish to access digital technology currently, I must buy a box. However, as I explained at the outset, digital television is a fact of life. The industry indicates that once the digital television programming becomes the norm, the price of digital television sets will come down to much the same price as analogue television sets. I see no difficulty with this section or the interpretation of free-to-air services as distinct from hardware.
Mr. Ryan: I do not wish to delay the House excessively but I am aware of everything Senator Mooney said. Will the Minister clarify whether, when the multiplex company is functioning and digital programmes are being broadcast, there will be more than one source from which people  can acquire the apparatus enabling reception or will the multiplex have a monopoly?
Miss de Valera: That is the function of the multiplex company, as is pointed out in this Bill. That will be under the regulation of the ODTR. There will be that watchdog in terms of the whole question of hardware referred to by the Senator.
Mr. Ryan: We still do not know that the ODTR will allow a monopoly. It has tolerated the abuse of monopoly by Chorus for the past 15 years by the imposition of a deliberate scrambling of free-to-air services in some cases. In this case the installation of a set-top box will be required, uniquely in Cork city and nowhere else in the country, for the mainstream terrestrial channels from this country and the United Kingdom. The incessant abuse of that position by Chorus, and in my experience the ODTR, shows that consumers are the least of its concerns. The expansion of highly sophisticated technology seems to be the priority. Therefore, what the Minister is saying here is that it is perfectly possible that we will end up in a situation in which, if the ODTR agrees, the multiplex company will have a monopoly on these decoders. The solution would be that for free-to-air services these apparatuses should be provided by whomsoever wishes to do so. People should not have to pay anymore than is necessary for access to them.
Miss de Valera: I totally disagree with the Senator because without DDT there will be no competition with satellite or cable. Each platform will compete and this will keep the prices down to some extent. So there will bee competition.
 (2)In making such regulations the Minister shall be guided by the principle that a person who owns more than 20% of enterprises in one medium shall not own more than 20% of enterprises in another medium.”
The degree of cross-ownership is an issue of long-standing concern for many people looking at the issue of media broadcasting and otherwise. This of course reduces competition, choice and people's ability to believe that what they are being provided with is a full range of services, hence the above amendment. I am prepared to argue the details of this with the Minister. There is an issue of principle involved here.
The evidence from other countries, particularly the UK, is that the large-scale ownership of the print media by Rupert Murdoch and of satellite television by the same owner put one individual in an extraordinarily powerful position. The two overlap. They support and publicise each other. That it is a situation that we should be endeavouring to avoid, both nationally and on a European level. It is neither healthy nor democratic to have that scale of quasi-monopoly ownership.
Dr. Henry: I support Senator Ryan's view that the details are not as important as the principle. We are all familiar with the situation in the UK but the situation in Italy is possibly worse. We would be well advised to include this principle in the Bill because politicians will be among the people who will suffer most from a monopoly on the press and other media which will result in only one view being transmitted.
Miss de Valera: This matter would more properly be dealt with by competition and mergers legislation in regard to which the Minister for Enterprise, Trade and Employment has recently announced plans. The report of the competition and mergers review group was published in May 2000, as a result of which the Government decided on 24 October 2000 that the existing law on competition and mergers would be replaced by new consolidated competition and mergers legislation. The new legislation will address the issue of newspaper and media mergers. Accordingly, it is not appropriate for me to address the issue in this Bill and I must, therefore, oppose the Deputy's amendment.
These amendments have been tabled in the interests of transparency. I read with interest the Minister's Second Stage reply in which she refuted the implication that she would or could abuse her powers or obligations. I would never make such a charge against the Minister and hope I did not imply otherwise but she will not always hold the office she currently holds.
I stated during the Second Stage debate that I had some serious concerns about issues of transparency and public accountability. I said it was imperative for members of the public to be involved in decision making processes and for public participation and accountability to be encouraged in all aspects of the regulation of broadcasting and broadcasters. We live in an age of openness, transparency and accountability and all of the cards should be placed face-up on the table. I did not intend any personal slight against the Minister. These amendments are worthwhile and I hope she will accept them.
Miss de Valera: I thank Senator Coghlan for his remarks which I fully accept. There is a fundamental philosophical difference between the Government's policy on digital television and that of the Fine Gael Party, as reflected in the amendments tabled by Senator Manning. The Government has decided that the DTT platform is the transmission platform best suited to the achievement of near universal coverage for indigenous Irish broadcasting services. The legislative framework which establishes the DTT platform in Ireland must address issues beyond those which simply regard broadcasting services as merely another telecommunications service. For this reason, it is appropriate that the Minister with responsibility for broadcasting should, on behalf of the State's citizens, have the primary role in the selection of suitable candidates to act as the transmission company and the multiplex company.
Amendments Nos. 5, 8 and 9 are designed to give the Director of Telecommunications Regulation the deciding role in the selection of the transmission and multiplex operators. While the director has many important and fundamental functions in this area, I cannot accept the above proposal for the reasons outlined. I, too, am concerned to ensure that the process of selection in both cases is open, fair and transparent. Such a process is subject to national and EU obligations with regard to the fairness of the tendering procedures used. In order to provide assurances to all involved in the process, I decided to appoint a process auditor who will provide an opinion on the openness, fairness and impartiality of the process as executed.
 Amendment No. 6 appears to conflict with the other three amendments in the group in that when deciding on the designation of the transmission company, I would be required to act not only on the advice of the director but also pursuant to a motion passed by the Select Committee on Heritage and the Irish Language. How could we be sure that the advice of the director and the decision of the committee would be the same? I oppose these amendments.
Miss de Valera: I would like to be in a position to oblige the Senator but, as I pointed out, the amendments representing the view of the Fine Gael Party are at great variance with Government policy. There is a huge disparity between the approach taken by both sides. Broadcasting services should be driven by a cultural rather than a telecommunications mandate. That is the core of the policy difference between the amendments tabled today and the thrust of the Bill. I cannot accept the amendments.
Mr. Coghlan: Surely the Minister would accept the Select Committee on Heritage and the Irish Language having a role in this area in keeping with the spirit of openness, transparency and accountability, even if she did not wish to accept advice from the director.
Mr. Ryan: I am at something of a loss here although it may be my own fault. I fail to see what transmission has to do with cultural values. I could understand the concern about cultural values in terms of programme making but we are discussing the transmission system and its connection with cultural values is beyond me. I am intrigued as to why the Minister, after 75 years of successful State ownership of the transmission system, believes an effectively privatised transmission service would be better for the country's cultural values than a system which has served us well in terms of private and public broadcasting.
It would be helpful if the Minister were to give us some idea of the criteria which will be used to decide on a “person who is a suitable person to be concerned”. That is the most peculiarly vague phraseology to use in regard to a company as fundamental as this which, in addition to being technologically sophisticated, must also be commercially viable and, according to the Minister, culturally in tune. Like Senator Coghlan, I accept that the Minister's behaviour is impeccable but the behaviour of one of her predecessors is currently entertaining a tribunal. I would be very worried if such vague phraseology had allowed him to select a company to carry out such a potentially lucrative task. The Houses of the Oireachtas deserve to know what the Minister feels constitutes “a suitable person” if she insists on not allowing anyone but herself to be involved in the selection of the company.
Miss de Valera: It is not a question of nobody other than myself being involved in it. That would not be acceptable. I have already outlined that there is an important role for a project manager and, in accordance with criteria predetermined by me, the DTT multiplex operator will be selected separately. I will be advised in the matter, however, by the project management group which is made up of my Department of Arts, Heritage, Gaeltacht and the Islands and the Departments of Finance, Enterprise, Trade and Employment and Public Enterprise. I will also have the advice of a consortium of consultants led by AIB Corporate Finance. It is not a question of taking a decision willy-nilly. This is a decision that will be made according to the proper procedures, and those procedures will be open and transparent.
Mr. Ryan: If they are open and transparent, why can the Minister not tell the Houses of the Oireachtas the sort of predetermined criteria she has in mind? At issue in these amendments is a process where we know and debate in advance, in a forum where the Minister can be held accountable in advance, the criteria that would determine suitable people to be concerned with this company. I refuse to accept that the Minister, after nearly a year and a half, does not have a clear idea of what constitutes a suitable person. I have to accept, therefore, that she knows and does not want to share it with us, which is not the way we should do business if openness and transparency are what we are about.
Dr. Henry: The Bill only refers to the Minister. We have no knowledge from the Bill of who these advisers will be. Would it not be wise to consider making plain who they will be because, as Senator Ryan said, it is rather surprising to find that transmission has a culture.
Mr. Norris: I support what my colleagues have said on this matter. It seems unusual that the Minister has criteria but is not in a position to let the House know about them. If this is the case, it certainly does not represent openness, transparency and accountability and the mere inclusion of advice from X, Y or Z does not constitute a clear direction or openness, accountability and transparency.
Miss de Valera: The provisions are set out clearly in the Bill. I will not be able to designate either company unless the onerous conditions set out in sections 5 and 8 of the Bill are met. With regard to the process auditor, this is a mechanism that has already been proved to work well in the area of telecom, for example. That is the reason I am bringing that mechanism into play here.
In page 8, subsection (5), line 45, after “Minister” to insert “, acting pursuant to a motion passed by the Dáil Committee on Heritage and the Irish language meeting and voting in public session”.
These two amendments are quite simple. They are an endeavour to keep both the transmission company and the multiplex company in public ownership. I invite the Minister to explain, in non-ideological language for a change, the reason it was decided to have them in private ownership. I am intrigued by this aspect. The idea that a private monopoly would be superior to a public monopoly is, in terms of even conventional economics, a nonsense or the idea that the transfer of these areas to the private sector will somehow provide greater efficiency. As I have said frequently, those of us in Cork who are the victim of Chorus, which has a monopoly in Cork city, are under no illusions about what private monopolies do. They abuse their customers unless they are vigorously and firmly regulated. There is no way that the Office of the Director of Telecommunications Regulation will do that and therefore the proper and correct way to ensure that both the transmission company and the multiplex company are accountable and capable of being dealt with when they misbehave is to keep them in public ownership because then they are clearly accountable to whichever committee of the Houses of the Oireachtas deals with public bodies. To do it this way is to involve the cloak of private company law to protect the secrecy, the commercial sensitivity and all the other excuses people use to protect themselves from their customers and their shareholders.
As my colleague, Senator Ross, has pointed out here on many occasions, there is not any real competition in the Irish business sector. There is not any real accountability to shareholders in particular because of the regulations. I am intrigued as to how the Minister proposes to increase accountability in both the transmission and the multiplex companies by turning them into private companies.
Mr. Mooney: Senator Ryan has repeatedly referred to Chorus in Cork, and obviously one is concerned about the remainder of the country.  Will the Minister clarify that this new legislation will enhance rather than diminish competition in this area?
Amendments Nos. 7 and 10 represent a fundamental difference of policy between the Government and the Labour Party with regard to the establishment of the DTT platform in Ireland; there is obviously a deep philosophical difference between us. The Government has decided that it is in the public interest that the platform be developed as a private commercial enterprise. The original idea for the sale of the existing broadcast transmission infrastructure came from the RTÉ Authority as a basis on which to proceed and in recognition of the magnitude of the capital investment necessary to successfully roll out the digital terrestrial platform to viewers.
The upgrade of the transmission network, which will have to be undertaken by the transmission company, has been estimated at £40 million, while the multiplex company will have to make arrangements for the provision of digital set-top boxes to all its customers and to make the necessary arrangements with broadcasters to provide a package of services to viewers. The attendant risks associated with this investment are more appropriate to the private sector than to the taxpayer and, accordingly, I am opposing amendments Nos. 7 and 10.
Mr. Ryan: We have to be very careful and clear here. The history of the Irish private sector overwhelmingly is that if there is a risk, it does not take it. What the private sector has consistently looked for is guaranteed return, usually with a cushion of State protection, and there is nothing more guaranteed to give a return than a monopoly. What we are creating here are two private sector monopolies and they will, by definition, be able to charge whatever price is necessary to make themselves viable. That is not competition. The competition may exist elsewhere but both of these companies will have effective monopolies and they will be no more competitive than the Westlink or the Eastlink bridges. They will charge people what they can get away with and what is necessary to reward their shareholders. That is not a good basis for public policy. The risks are not enormous. If they were, the private sector would not be involved. What did it ever get involved in? The Internet was developed within the public sector. Much of the research into pharmaceuticals was funded by the public sector either in Europe or North America.
The Irish private sector is notoriously risk shy and the only reason it is getting involved here is because it will have a de facto guarantee that it will not be able to lose money and therefore there will be no risk. It would not get involved otherwise; that is neither its style nor its history.
Miss de Valera: It is important to underline the tremendous work RTÉ has done throughout the years in providing an excellent public broadcasting service but it is also important to underline the fact that it was RTÉ which put forward the view that it wanted a 40% stake in a commercial company, as was envisaged at that stage of the legislation when the body was to be known as Digico. This came directly from the source of Irish broadcasting.
Mr. Norris: The Minister has indicated a number of ideological differences, both with the Labour Party and Fine Gael, which is perfectly reasonable – she is a distinguished representative of a political party with a long history. However, I regret that it could give the appearance of a lack of openness, transparency and accountability. In particular I am concerned that some of the amendments were not accepted and I sincerely hope they will be tabled again on Report Stage, especially those dealing with the concentration of ownership in the media. As a small country we need to be very careful in this regard. The Minister is aware that my bête noire is Rupert Murdoch and the immense damage he and his like can do internationally. I would hate to think the Irish media market would be opened so as to allow such people gain substantial control. We ought to take every possible step to obviate this and ensure we are protected against the malign intervention of such people. Perhaps there will be a further opportunity to speak on this.
The Minister is generally sympathetic in this area, as her predecessors have shown themselves to be. I do not want to exaggerate the dangers, but they are very real and are felt not only in this country. I very clearly remember the late Dennis Potter speaking polemically about this issue and dramatising it in some of his television plays. We must bear in mind that it is highly dangerous to allow a concentration of power in the hands of one individual or group and I hope the Minister will give us assurances that the legislation will protect our culture against this type of invasion.
Mr. Ryan: When discussing Senator Coghlan's amendments, the Minister adverted to the stringent conditions contained in section 5, but I have read the section very carefully and cannot find them. Perhaps this is my fault and the Minister will point out the stringent conditions to be applied to the choice of “a suitable person to be concerned in such formation”. Is there anything envisaged to prevent the transfer of ownership of the company, other than the part which will be owned by RTÉ, to a non-national company? This  raises very serious questions in terms of the cultural issues about which the Minister spoke.
Miss de Valera: Regarding ownership, I am very sympathetic to the view outlined by Senator Norris. In the Dáil and again here this afternoon I explained that the issue of mergers legislation is not a matter for me but for the Minister for Enterprise, Trade and Employment. She has been examining this. New legislation will address the issue of newspaper and media mergers and it is the responsibility of the Tánaiste and Minister for Enterprise, Trade and Employment to deal with that issue. However, I share the concerns expressed by Senator Norris. Other countries, some not too far away, have had certain experiences we would not like to see repeated.
Miss de Valera: It is not as simple as that as each Minister has his or her own responsibilities, and this does not come directly within my responsibility. The Minister responsible is taking this in hand and has referred to the fact that new legislation will be brought forward. I am sure the Senator, given his very strong views, will take the opportunity at that stage to voice his concerns.
Regarding the issues raised by Senator Ryan, the criteria are outlined in the Bill. On any fair reading, the section sets out exactly what must be done and the very onerous obligations – it is right they should be onerous. A particular mechanism will be used in regard to the project management group, which consists of the Departments of Arts, Heritage, Gaeltacht and the Islands, Finance, Enterprise, Trade and Employment and Public Enterprise. I will have the advice of a consortium of consultants with AIB Corporate Finance. The conditions as set out in section 5(2), 5(4) and 5(5) must be met before I can designate. It is important to note that this is stated quite clearly in the Bill. Perhaps the Senator is not in agreement as to how this is done, but in any fair reading of the Bill such provision is outlined.
Mr. Ryan: If the Minister is implying I am being unfair, we can mix it a bit more, but we do not want to get into that and I will not take up the challenge to prove I am being fair. The Minister says there are stringent conditions to be met. It is undoubtedly true that subsection (4) sets out what should be in the memorandum of association, which is fine as that is what the company is supposed to do. I want to know how the Minister will choose who is suitable to meet the conditions of the memorandum of association. Subsection (2)(a) states: “the company has been formed and registered by two or more persons (who may include the Authority), each of whom the Minister is of the opinion.” The phrase “of the opinion” is virtually unchallengeable in law as it does not mean the Minister must be satisfied, convinced or persuaded – there is no objective test.
I have been in the House at different times over the past 20 years and I know the phrase “of the opinion” cannot be challenged in law as a Minister is entitled even to have a perverse opinion, although I am sure this would not apply to the current Minister. The only qualification I can find about the individuals who will form the company is that the Minister should be of the opinion that they are suitable. There may be other stringent conditions in section 5 which I have missed. I cannot find a less stringent condition than one which adverts to a person who in the opinion of the Minister is suitable. I would like to know what the phrase means. The process is supposed to be open, transparent and accountable, but one wonders why such a fundamental issue about future public policy is clouded in vagueness.
Dr. Henry: I understand the Minister when she says monopolies are not part of her brief, but our worry is that the Bill is being passed without monopolies and mergers legislation. Have heads of Bills been drawn up yet? Sometimes I wait for the fourth anniversary before again raising the promise of legislation which I was told was being given the utmost priority. Our concern is that the Bill will be passed and that we will be waiting a very long time for the promised legislation which the Minister says is due.
Miss de Valera: I do not know what stage the proposed mergers legislation is at, but I will certainly get that information for Senator Henry. That legislation is not my responsibility or that of my Department. If this legislation is far in advance of the proposed merger legislation, as I believe it is, I am sure Senator Henry does not wish to delay it. It is important that we have the roll out of a DTT as quickly as possible.
Senator Ryan raised the issue of criteria. All of this must be subject to national and EU obligations, with regard to fairness, for the tendering procedures. To provide assurances in this regard, I have decided to appoint a process auditor. I want to ensure that a person is in place who will provide an opinion on the openness, fairness and impartiality of processes as executed. That is his specific task. There is always the process of judicial review but this process auditor has a specific mandate to give an opinion on the whole process.
Mr. Ryan: It is not. It is extremely unsatisfactory. The wording “a suitable person” is of concern. Does it mean that they are technologically skilled, that they have media experience, that they are Irish, that they are Rupert Murdoch or what? What is the view of the Government on  what constitutes a suitable person? I am not interested in the process afterwards but in the criteria under which it operates and what is critical here are its terms of reference.
I do not believe the Minister answered my question about the possibility of ownership of the transmission company moving into the hands of non nationals. Is there any provision to ensure that the majority shareholding in the transmission company could not be sold on to non citizens and what conditions would apply to any sale? I would consider such a sale regrettable and feel it is a reason to keep it in public ownership.
Miss de Valera: The kind of person that would serve as a process auditor would be a person of great integrity, above reproach and able to ensure that procedures were followed and that the terms of reference were adhered to. That would be his or her specific job. I am not in a position to name a specific person but I hope the person will be someone of the rank of a high ranking civil servant. They would have expertise in procedures and would be considered by all sides as a person above reproach. Senator Ryan raised the issue of the majority holding in the transmission company. RTÉ is anxious that it should have a share in the transmission company. The majority shareholding will be held by other than RTÉ. It will be open competition so it would be difficult for me to name the people likely to take on that responsibility. It will be open to tender in the usual way.
Mr. Ryan: No, nor anywhere near. I believe the process auditor will be a person of the highest integrity but I am interested in the criteria for suitable people to run this company. The Minister either does not know or will not tell us who are suitable people. I will not pursue the issue further but it is unsatisfactory that after nearly two years of this legislation the Minister will not tell us in broad terms what constitutes a person suitable to run this transmission company.
The requirement to promote the development of multimedia services and to promote the development of electronic information services is a great idea but these are only marginally profitable at present. Most ISPs are only marginally profitable if at all. What will drive a private commercial company to provide these services if they are not profitable? They are in the memoranda of association but that must be subject to shareholder interest. It would be reckless trading to do things which jeopardise or reduce the value of shares. If they know that the promotion of multimedia services is unprofitable and will dilute shareholder value they cannot do it. Similarly if they promote the development of electronic information services and these are not profitable that will also dilute shareholder value and would be reckless trading. Why should a private company promote such services?
 Can the Minister explain to me why she needs the power to require the authority to divest itself of all of the shares it holds in the transmission company? Why do we need it entirely privatised?
Miss de Valera: The establishment of the DTT will enable access to the Internet via television. No computer will be necessary. This will make access cheaper and we will be able to use our televisions in a way very different from the way we use them at present. Cheaper access will be a commercial decision. The provision that relates to the transfer of RTÉ shares seeks to provide for circumstances in which the existence of an RTÉ shareholding would be likely to significantly impede the realisation of the public policy objective for the success and establishment of a DTT platform or where the execution of its responsibilities as a shareholder in the transmission business might negatively impact on RTÉ in its role as national broadcaster.
I do not accept some of the issues raised earlier by Senator Ryan. The Bill is quite clear on this. I can understand there would be a difference of opinion in regard to policy but it is not fair the Senator should make out that the publication of the Bill has been delayed due to political tardiness or that it is not clear.
Mr. Ryan: I would argue that this is not my fault but owing to the reluctance of the Minister to make clear what she means by a suitable person to run a transmission company. I presume she knows or she would not have included it.
Mr. Ryan: And far be it from me to argue with you, a Leas-Chathaoirligh. That would be even more improper. If you tried to do this through a placement on the Stock Exchange, you would be told that some of this terminology is far too vague.
Section 5(2)(a) refers to “a person who is a suitable person to be concerned in such formation and registration”. That is not precise, no matter what the Minister says. The fact that the Minister wants to be involved in the naming of the company is a fascinating exercise in minutiae. Section 5(15)(c) states that “the company is a company limited by shares,” and I am glad to hear that. These are all perfectly reasonable but the phrase in subsection (2)(a) is unsatisfactory.
I really am disappointed. I thought there was some rational basis for all of this but as of now, one has to assume there is none. I have a very simple view. If you make a private monopoly, you  are either leaving somebody in a position to dictate how much money they can make out of it, or you have to put together criteria of openness and accountability which are not part of the normal company ethos. Alternatively, you leave the monopoly in State ownership where it can be rendered accountable. The Minister is doing neither and therefore the section is profoundly unacceptable, not because of an ideological dispute about State or private ownership, but because the concept of private ownership written into the section is a concept which will make it  very easy for people to reward themselves at the public's expense. The Minister declines to tell the House the criteria she will use to select the sort of people to run this service.
Ó Fearghail, Seán.
Ó Murchú, Labhrás.
Cosgrave, Liam T.
Cregan, Denis (Dino).
Question declared carried.
Mr. Coghlan: I move amendment No. 8:
In page 10, subsection (3), line 33, after “Minister” to insert “acting only upon the advice of the Director following an open, fair and transparent selection procedure.”
Amendment put and declared lost.
Section 6 agreed to.
Amendment No. 9 not moved.
Section 7 agreed to.
Amendment No. 10 not moved.
Question proposed: “That section 8 stand part of the Bill.”
Mr. Ryan: I again raise the question of multiplexes. Where, if at all, does digital sound broadcasting come into this?
Miss de Valera: The Senator refers to what is known as DAB, digital audio broadcasting. This is not dealt with in this Bill. There was confusion among those in the audio section on the first publication of this Bill. Therefore I put forward certain amendments in the lower House to clarify this. Digital audio broadcasting requires much more discussion and policy development. Separate legislation will be needed.
Mr. Ryan: Subsection (3)(d) refers to promoting the development of electronic information services, including those provided by means of the Internet. This is in the context of the multiplex. Much of what we are doing here may be out of date in about ten years, particularly if DSL becomes commonplace in people's homes. Virtually anybody's living room will become a broadcasting studio. Already the United States is awash with video-cams and live-cams on the Internet.
 The quality of moving picture is still fairly primitive. For instance, I would not like to watch an all-Ireland hurling final on the Internet in Australia. The sound would add to the excitement, but not much can be seen. That is only a matter of time. Within ten years, many of the attempts to regulate as to who broadcasts will be history.
Has the Minister any thoughts on this? We are moving in quite a revolutionary way and it will be impossible to regulate who broadcasts. Though our definition of broadcasting will not change, a huge amount of broadcasting will be done via high band width, broad band cabling. Anybody prepared to pay £30 or £40 per month for a DSL connection will probably be able to broadcast perfectly good quality video and sound.
Miss de Valera: I agree with the Senator that the onset of digital television is quite revolutionary. It will bring many changes and we should be able to embrace these. I agree that there will be many changes over the next ten years that we cannot even dream of now. Bearing in mind the kind of technologies that will be coming, we need to have flexibility. The Senator refers to ten years from now. We can only deal with now in legislation. I have noticed that it is usually every ten years that broadcasting legislation is brought in and no doubt it will be some other public representative's responsibility to bring in such legislation. I hope to deal with the situation as we know it now and get digital rolled out as quickly as possible, making changes as circumstances change.
Mr. Mooney: In the context of Senator Ryan's question on DAB and the Minister's response, in its annual report RTÉ states that it has already started pilot broadcasting of digital audio broadcasting from the Three Rock transmitter. This also accesses Today FM and is not just exclusively RTÉ radio programmes. In light of what the Minister has said, not wishing to divert her from the important task of processing this legislation and as someone who comes from the radio culture, I strongly urge that she turn her mind to the legislation she has indicated would be necessary for the introduction of national DAB. I urge her to do this in the short term rather than having to play catch up.
There are clear advantages to digital audio broadcasting. It will effectively be like having a recording studio in the car or home due to trouble free radio transmission. The problems caused by the terrain, the mountains and rivers etc., will disappear. The difficulties of accessing FM radio in certain parts of the country, where it is necessary to switch from one transmitter to another to maintain quality, will disappear with DAB. I do not want to labour the point, but I want to put down a marker. I am not asking for a response, but I call on the Minister to be innovative in her legislative role on broadcasting.
Question put and agreed to.
 SECTION 9.
Question proposed: “That section 9 stand part of the Bill.”
Mr. Ryan: I am concerned about the concept of the appropriate period mentioned in section 9(4):
If, on the expiration of the appropriate period, a person specified in column (1) of the table to this section–
(f2>a)has not supplied any programme material and related and other data to the multiplex company for the purposes of that material and data being combined–
(f2>b)is not supplying programme material and related and other data that is sufficient to exhaust, on a day to day basis, the capacity of the said multiplex–
I am concerned that the obligation to fill could end up with an enormous amount of pap and regenerated second rate rubbish simply to meet the legal obligation to fill the multiplex capacity by RTÉ or whoever. The quality of what they put on seems to be subordinated to the quantity condition. That is a pity. What is the Minister's thinking?
Miss de Valera: The rationale behind this is that we are dealing with a finite resource and we need to ensure its full use. The other reason is to ensure that there is a fair distribution.
Mr. Ryan: I accept the rationale. This is not a matter on which the Minister and I are in dispute. I worry that this is such a specific legal condition. If they feel they are under pressure and time is running out, the excuse is there for any of the broadcasters who have an allocated right to a multiplex, or part of a multiplex, to give us “Jerry Springer” all night or something else even cheaper.
Question put and agreed to.
Acting Chairman (Mr. D. Cregan): Amendments Nos. 11, 15, 16, 17 and 76 are related and may be discussed together by agreement.
Mr. Coghlan: I move amendment No. 11:
In page 15, before section 10, to insert the following new section:
“10.–The Commission shall renew the licence of a broadcasting licence holder when it expires for a period of not less than five years if the licence holder has complied with the requirements of the licence.”.
This is a reasonable amendment. I said on Second Stage that the Independent Radio and Television  Commission, or the commission as it will become, should at least carry out some assessment of the performance of the local stations in the context of their contractual and statutory objectives and the outcome of this review should influence the Independent Radio and Television Commission, or the commission as it will be, in deciding whether to re-advertise the licence for the franchise involved.
The Minister has met the independent broadcasters, whom I wish well. I believe the Minister is favourably disposed towards this amendment, even if she does not accept it today. The amendment implies that the commission should have regard to the benefits of the continuity of service, the extent to which the applicant has provided a satisfactory sound broadcasting service to the area specified and the applicant's knowledge of the proposed franchise area. This would not amount to automatic renewal in any form and it would preserve the power of the Independent Radio and Television Commission or the commission. It would simply offer some advantage to existing operators and would shift the burden of proof to those who wish to replace them. If the Minister cannot accept the amendment today, I urge her to table an amendment on Report Stage.
The status quo is not an acceptable alternative from the point of view of the independents. The Minister's amendment, introduced in December, instructs the Independent Radio and Television Commission to take past performance into account. However, it may make matters worse because the legal advice is that the Independent Radio and Television Commission may use the provisions against local radio station operators. The Independent Radio and Television Commission is reported as saying that it will act as much against local radio as it will act in its favour. I recognise that the Minister's amendment was well intentioned but unfortunately it was counterproductive as it raised the prospect of any blemish on the record of a station being compared to the clean slate of a new applicant without any regard to whether the new applicant had previously broadcast in the franchise area. It can also lead to much instability as regards staff, further investment and the service.
I do not want to labour the point as the Minister is favourably disposed to the proposal in the amendment. I am glad she met the independent broadcasters. If she cannot accept this amendment, which is entirely reasonable, maybe she will table an amendment on Report Stage.
Labhrás Ó Murchú: The Minister said on Second Stage that the track record of licence holders would be kept in mind when licences came up for renewal. It is evident that it would not be possible to have automatic renewal. It is also evident that the Minister is anxious to have continuity of service and, hopefully, that applicants would have a knowledge of the franchise area. The Minister might reconsider her views follow ing her meeting with the independent broadcasters. I am delighted she met them as she is aware of the importance of local radio, standards and the continuity of service.
Miss de Valera: Amendments Nos. 11, 15 and 17 seek to ensure that sound broadcasting contracts issued by the Independent Radio and Television Commission would be automatically renewed if the operator complies with the terms of the licence. There seems to be a slight conflict between amendments Nos. 15 and 17 but the objective is the same in each case. While I accept that local radio has generally been an outstanding success since its introduction, I am surprised that the Senators would wish to prevent any potential broadcaster from having the right to compete for the right to provide a service.
I realise that at an earlier stage the broadcasters were seeking that licences be renewed based on their compliance with existing contracts. While I am not prepared to guarantee renewal, this formed the basis of the amendment I promoted in the other House which resulted in the creation of section 60. As Senators Coghlan and Ó Murchú said, I met representatives of the Independent Broadcasters of Ireland in recent days. They seem to be unhappy that the Independent Radio and Television Commission will be expressly required to take compliance with the contract into account. This would suggest to me that the local radio operators might not be happy with the wording of the amendments proposed by the Senators. While I do not oppose these amendments, I am considering the issue and will return to it on Report Stage. However, I wish to make it absolutely clear that I am not guaranteeing that I will promote an amendment and I have no intention whatsoever of diminishing the role of the Independent Radio and Television Commission in this area in any way.
On amendments Nos. 16 and 76, the principle has already been taken on board in section 60 in that the Broadcasting Commission of Ireland will be required to give reasons for its decisions to unsuccessful applicants. I understand that the Independent Radio and Television Commission would do this in any case, but I can see some merit in having these principles enshrined in law.
Amendment, by leave, withdrawn.
Mr. Manning: I move amendment No. 12:
In page 15, between lines 14 and 15, to insert the following subsection:
“(3)No person shall sit on the Commission as a Commissioner unless his or her proposed appointment has been approved by the relevant Oireachtas Committee acting in public session.”.
Miss de Valera: The purpose of this amendment is to give the Select Committee on Heritage and the Irish Language the power to decide who should or should not be appointed to the Broadcasting Commission of Ireland. The Government appoints the chairperson and members of the Independent Radio and Television Commission and is required to ensure that a person has experience of, or shown capacity in, one of a number of areas such as media or commercial affairs, radio communications, engineering, trade union affairs or social, community, education or cultural activities. These provisions are sufficient and the amendment could serve to put people off from serving on the commission. Accordingly, I oppose the amendment.
Amendment, by leave, withdrawn.
Section 10 agreed to.
Acting Chairman: Amendment No. 13. Amendment No. 66 is related. Is it agreed that we discuss amendments Nos. 13 and 66 together? Agreed.
Mr. Ryan: I move amendment No. 13:
In page 15, subsection (2), between lines 28 and 29, to insert the following new subsection:
“(3)The Commission shall facilitate the development of community television and radio by endeavouring to ensure that sufficient access is provided to production and broadcast facilities, and that sufficient training is made available, to allow for the widest possible access to and participation in programme making, production and broadcasting.”.
I agree to the taking of the amendments together but would have liked time to look further at the grouping.
This amendment states the obvious in that it will make it obligatory on the commission to facilitate the development of community television and radio. My party believes that the concept of community should not be geographically defined as a community can be defined by a common culture or common interest. This arises particularly in terms of radio. Senator Mooney referred to the possibility of thousands of radio stations with digital audio broadcasting which hopefully we will have in the future. The commission should be required to assist community television and radio. RTÉ tends to do a bit of this but it will probably retreat from this given its new and different mandate.
Miss de Valera: It is not appropriate to insert a specific and detailed reference to community broadcasting into the general remit of the Broadcasting Commission of Ireland. Section 11 contains an expansion of the broad remit of the com mission and we should not single out one element or sector of broadcasting no matter how important it is. I must, therefore, oppose amendment No. 13.
On amendment No. 66, I think Senators will agree that its objectives are embraced comprehensively in section 40 and that there is little point in proceeding with it.
Amendment, by leave, withdrawn.
Mr. Manning: I move amendment No. 14:
In page 15, between lines 21 and 22, to insert the following subsections:
“(2)Without prejudice to the functions conferred upon it by the Act of 1988 or any other enactment it shall be a function of the Commission to ensure that all persons offering broadcasting services operating in the State shall be subject to the same single, fair and consistent scheme of regulation to be applied evenly and equally to all of them without discrimination of any kind whatsoever. Accordingly all relevant powers and responsibilities reserved to or devolving upon the Minister under the Broadcasting Authority Acts, 1960 to 1999, shall now be reserved to or devolved upon the Commission and those Acts shall be construed accordingly.
(3)For the avoidance of doubt and without prejudice to the functions conferred upon it by the Act of 1988 or any other enactment and without prejudice to the generality of subsection (2) of this section it shall be a function of the Commission to ensure that all persons offering broadcasting services in the State discharge fully their obligations under the Broadcasting Authority Acts, 1960 to 1999, and their contractual obligations to the Commission.
(4)Any person offering a broadcasting service in the State (and therefore subject to the authority of the Commission) shall present to the Commission a detailed report in the form appearing in the Third Schedule to this Act, or in such other or modified form as the Commission may from time to time prescribe of its activities, attainments and financial performance in the twelve months preceding demonstrating the extent to which that person has complied with their obligations whether under the Broadcasting Authority Acts, 1960 to 1999, or contract with the Commission. The Commission shall within fourteen days of receipt of every such report meet and either–
(f2>a)approve, comment upon and publish the report so submitted and the comments of the Commission, or
(f2>b)reject, comment upon stating the reasons for rejection and publish the  report so rejected together with the comments of the Commission.
(5)Any person offering a broadcasting service in the State and therefore subject to the authority of the Commission shall present to the Commission a detailed report in the form appearing in the Third Schedule to this Act, or in such other or modified form as the Commission may from time to time prescribe of its planned activities and supporting budgets for the twelve months next following the date upon which the report is presented, demonstrating the extent to which that person intends to comply with their obligations whether under the Broadcasting Authority Acts, 1960 to 1999, or contract with the Commission. The Commission shall within fourteen days of receipt of every such report meet and either–
(f2>a)approve, comment upon and publish the report so submitted and the comments of the Commission, or
(f2>b)reject, comment upon stating the reasons for rejection and publish the report so rejected together with the comments of the Commission.
(6)Any person presenting a report to the Commission under this section which report is rejected and the report and reasons for rejection published by the Commission may make representations to the Commission, including but not limited to undertakings concerning future plans in order to obtain the Commission's approval for the report previously rejected. The Commission shall meet within a period no sooner than 30 days of publishing a report it has rejected and no later than 45 days from publication and reconsider the report so rejected and any representations that might have been made by the person who submitted the report to the Commission. If on reconsidering the report the Commission does not approve the report it shall stipulate clear requirements for approval. If after 14 days from such meeting, rejection and stipulation, the person in question has not fully complied with the requirements stipulated by the Commission, the person in question will yield to the Commission, on demand, a penalty being no less than 1 per cent of its gross annual income in respect of each period of seven days, or part thereof, within which those stipulated requirements were not met.”.
Miss de Valera: This amendment is designed to establish the type of body which has become known as a super authority and to centralise the regulation of all forms of broadcasting. The policy of the Government, as provided for in the Bill, is that all broadcasters will have to adhere to certain common codes of standards in relation to taste  and decency in programme material and in relation to advertising and sponsorship drawn up by the Broadcasting Commission of Ireland. The commission will also be empowered to develop rules in relation to methods by which broadcasters promote the enjoyment of broadcasting by persons who are deaf or hard of hearing and persons who are blind or partially sighted. However, RTÉ as the national public service broadcaster has a specific statutory remit and it is incumbent on the authority to ensure that the remit is met. I do not propose to change this situation with regard to the authority's free-to-air broadcasting services.
Similarly, the Bill provides that when TG4 is established as a separate statutory entity it will also have a strong public service remit. It will be a matter for the board of TG4 to decide how best to meet this statutory remit. Neither the authority nor the board of TG4 would be assisted in any way by the extra layer of bureaucracy proposed in these amendments. The all powerful broadcasting commission proposed by Senator Manning seems designed to rule broadcasting and broadcasters with an extremely heavy hand. Automatic and severe penalties are envisaged for those broadcasters. Given the heavy centralised control envisaged in these amendments I can see no place for editorial diversity or editorial freedom in broadcasting.
I am not too concerned that there may be different interpretations and approaches between broadcasters in the future under the structures envisaged in the Bill. Such diversity will be important. Accordingly, this amendment should be opposed on policy and on practical grounds.
Mr. Manning: It may be unusual but I happen to agree with the Minister.
Amendment, by leave, withdrawn.
Question proposed: “That section 11 stand part of the Bill.”
Mr. Ryan: The Minister has been asked this question before. Section 11(2) refers to the number and categories of broadcasting services made available in the State by virtue of this Act to best serve the needs of the people of the island of Ireland, bearing in mind their languages and traditions and their religious, ethical and cultural diversity. This is a good opportunity to raise the issue of a religious broadcasting service. Given that we have the highest level of church going in western Europe we must be virtually unique in not having a radio station dedicated to religious broadcasting. I am not necessarily nailing my colours to the mast of the particular agency that has been lobbying on this issue but it is a strange omission that we cannot have a dedicated religious broadcasting service in a country where the vast majority of people still take matters of religious practice seriously.
Miss de Valera: I agree with the Senator in that there has been a good deal of lobbying on this matter. He is talking about the general principle rather than the particular groups who lobbied very vociferously. There should be the opportunity for such religious stations. Obviously this will be a matter for the Independent Radio and Television Commission to decide. To ensure religious programming would be taken into account in the deliberations of the Independent Radio and Television Commission, there is a deliberate reference to this in section 11(2) which states:
In performing the function conferred on it by this section or the functions conferred on it by the Act of 1988, the Commission shall endeavour to ensure that the number and categories of broadcasting services made available in the State by virtue of this Act or the Act of 1988 best serve the needs of the people of the island of Ireland, bearing in mind their languages and traditions and their religious, ethical and cultural diversity.
The word “religious” is included so that it will be among the other issues that will be taken into account in any decisions that will be taken subsequently by the Independent Radio and Television Commission.
Mr. Ryan: I want to clarify this matter. The Minister is saying quite clearly that if the Independent Radio and Television Commission wishes to facilitate the setting up of a religious broadcasting service there is no legal impediment.
Miss de Valera: That is correct.
Mr. Mooney: My understanding is that the Independent Radio and Television Commission, which will be superseded by the new commission, has been or is actively pursuing a licence for a religious AM station. Perhaps the Minister was going to address that issue. I acknowledge the Independent Radio and Television Commission, albeit rather slowly, is addressing languages, traditions, ethical and cultural diversity in that it is providing a more diverse form of radio throughout the country and is actively ensuring an even wider diversity. I presume the Minister's proposals in this section will accelerate that process.
Mr. Manning: It is important that it be made clear to the Independent Radio and Television Commission that there is cross-party agreement in this House, and I am sure in the other House as well, that the establishment of such stations should be encouraged. It is surprising that the leadership of the mainstream churches has not given a lead in this regard. There does not seem to be any strong lead coming from them but maybe I am wrong. Will the Minister say if any serious proposals have been made and turned down?
Miss de Valera: I am sure Senator Manning would not wish me to speak on behalf of any par ticular church. The mainstream churches are well able to speak for themselves. With regard to the decisions made by the Independent Radio and Television Commission, the question posed to me by Senator Manning would be more appropriately posed to the Independent Radio and Television Commission because as Minister I have no say in licensing matters.
Question put and agreed to.
Amendments Nos. 15 to 17, inclusive, not moved.
Question proposed: “That section 12 stand part of the Bill.”
Mr. Ryan: I do not think anybody would dispute the principle of subsection (5) which seeks to prohibit breaches of the Prohibition of Incitement to Hatred Act. I do not know what Article 22 or 22A of the Council Directive is but I presume it is related to similar matters. This relates to programme material. Where does the provision to deal with incitement to hatred on the Internet, if provided through the multiplex service, apply?
A debate is taking place all over Europe about the use of the Internet to incite the most vile kind of racial hatred and other matters. We have dealt with paedophilia and the degree to which it can be used for such purposes. Steps are being taken to deal with that, and rightly so. On the whole issue of incitement to hatred there is still some uncertainty about the Internet and whether or how it is regulated. At the very least we can say it is illegal. We may not be able to stop it but society can make statements about many things it cannot stop. One such statement ought to be that the use of the Internet for activities which would be in breach of the Prohibition of Incitement to Hatred Act would be illegal.
Miss de Valera: Whereas I understand and can concur with Senator Ryan's concerns, the Internet is not broadcasting and it is specifically excluded from the definition of “broadcasting”. There is no opportunity to address the issue in this legislation.
Question put and agreed to.
Sections 13 and 14 agreed to.
Question proposed: “That section 15 stand part of the Bill”.
Mr. Ryan: The Minister is essentially the Minister for culture. Therefore her brief extends, even if not under this Bill, to diversity in the print media. I am not talking about newspapers but cultural diversity. Therefore, I am glad section 15  excludes broadcasters, either transmission or multiplex companies, from liability for libel and such things.
Does the Minister have any proposal to liberalise the libel laws by excluding printers and distributors who can still be sued for libel in the print media which, to coin a phrase, would be analogous to this? One of the dreadful anomalies of the libel laws is that people who distribute the libellous material can be liable for the damages. We have correctly ensured this will not happen in broadcasting. It would be a simple change in the libel laws, and not very controversial, to exclude printers and distributors from the provisions of libel.
Miss de Valera: My specific responsibility in this regard is with broadcasting. While I am aware of the different views expressed in regard to the libel laws, I have no power in relation to the print media and it is for a different Minister and different legislation to deal with the libel laws in that area.
Mr. Ryan: Does the Minister not have an opinion?
Miss de Valera: I have an opinion but, as I am not the Minister with responsibility for this area, I am sure the Senator knows this is not the correct forum for such discussion.
Mr. Ryan: There was a time in the Minister's youth when she was more than capable of expressing opinions about many issues.
Mr. Manning: The Minister is still in her youth.
Question put and agreed to.
Amendments Nos. 18 and 19 not moved.
Section 16 to 18, inclusive, agreed to.
Mr. Ryan: I move amendment No. 20:
In page 20, before section 19, to insert the following new section:
“19.–A broadcaster in the State shall not broadcast advertising directed at children below the age of 12 or broadcast during programmes directed at such children.”
The Minister adverted to the issue of advertising directed at children. My amendment deals with this issue and also the equally important question of advertising in programmes directed at children, even if it is nominally directed at adults. Simply to ban advertising directed at children under 12 will not necessarily deal with the issue of the manipulation of children. It is fascinating to look back at 150 years ago because one wonders how many things that happened then could be tolerated. In 100 years' time when people look back  at us, there will be similar questions about the things we tolerated. One issue that will be looked at with amazement then is how we allowed mass advertising to be directed at children. People will wonder how we could tolerate such an uncivilised idea. There is no justification for it.
The whole basis of competitive market economics is the belief that people make rational choices. We do not believe that anyone under 18 years of age in this State is capable of signing a contract because we do not believe they are mature enough. However, we allow all the forces of manipulative advertising to be directed at children of every age.
The Swedish authorities have an interest in this matter and we cannot do it on our own. However, we could set a standard by saying that we are committed, in principle, to the ending of advertising directed at children. The age of 12 is quite conservative but there is a huge amount of subliminal advertising directed at 15, 16 or 17 year olds, which makes a difficult period in their lives even more difficult. Much of this is related to sex and alcohol and, while both these topics are used subliminally, they are used in ways which manipulate young people at a time when they are capable of being manipulated. We should consider the reasonable age of 12 in relation to advertisements directed at children or advertising in programmes directed towards them.
If people say if there is no advertising directed towards children, there will be no children's programmes, then we should change the law and tell these people they will not be allowed to broadcast in the State if that is their attitude. People will look back in 100 years' time and wonder how we tolerated this advertising.
Dr. Henry: I support the amendment, as would a large number of parents. There have been reports in today's newspapers on the extent of drinking alcohol among teenagers across Europe. The reports strongly suggested that advertising is extremely important in this regard. We will soon be discussing banning the advertising of alcohol on television. Given the huge industry initiated and promoted by the advertising of toys, clothes, commodities, cosmetics and so on to children, sexualising them in some situations, which is appalling at such a young age, I believe Senator Ryan and his colleagues' amendment is very modest. The base of the industries that rests on these programmes is enormous and few of them have much to do with Ireland. If we are concerned about the cultural aspects of our broadcasting, it would be worthwhile beginning with the advertising of products being promoted to children.
The amendment is very modest. There will be advertising on other channels but these channels may rapidly begin to do what we are doing. For example, other television channels in Europe do not advertise alcohol, yet we are still advertising it. The acceptance of this amendment would do great service to young people in this country.
Mr. Manning: This amendment is little more than a gesture and is probably one that should be accepted. In many ways the stable door has long been open and this horse has bolted. My ten year old son watches programmes such as “Friends” and these very smart American sitcom comedies. I think he misses most of what is happening on them but I suspect that will not be for much longer. There is also the “Simpsons”, football and so on. Programmes such as “Friends” are larded with advertisements for alcohol. The sexual exploitation content of children's programmes on the BBC and ITV is huge. In an age when children are sexually aware much earlier, these programmes must be a very destructive factor. I wonder what can we do.
Senator Henry said that other countries have banned the advertising of alcohol, which I support. However, it is just one step. I mentioned here the other day that in UCD, where I know the students very well, there is a daily promotion of some society which is backed by the big alcohol companies. First year students are being given cans of beer and various hard drinks such as vodka and so on. There is hardly an event that is not sponsored and UCD is trying to devise its own code which, I hope, will ban sponsorships of this sort. Our soccer team is sponsored by a beer company. Guinness sponsors the All-Ireland and so on.
All the amendment is doing is making a gesture. It will have no practical effect whatsoever because we cannot police the other channels coming in here. If we want to make a gesture, let us do so. If we want to say public policy should enshrine these principles, let us accept the amendment. However, I do not believe it will make a great deal of difference.
Mr. Mooney: This issue is of great concern to those of us who are parents as well as to the wider public. I agree with everything Senator Manning said because I, too, have children of that age. I am absolutely appalled at the filth on the terrestrial television channels to which we have access.
Over the last few years, Channel 4, in particular, has dumbed down to such an extraordinary degree that it now has pornographic programmes parading as social documentaries. They have used every conceivable variation on the sexual theme to attract audiences. Late night British television has reached a low which I am sure has Lord Reith spinning in his grave. I do not speak as a conservative, middle aged man.
Mr. Ryan: Perhaps they are the views of such a man.
Mr. Mooney: These developments reflect the society we have created. I agree with Senator Henry's comments on drink. The television series “Glenroe” is watched by many youngsters, including my five year old child, and is seen as wholesome family entertainment. Two weeks before Christmas the series featured a single  father, not more than 18 years of age, who was given a job on a building site by his girl friend's father. At the end of his first week on the site the young man and the girl's father repaired to the local pub, the centre of activity – why is it that everything happens in the pub? – where the young man was encouraged by his putative father in law to get his first ever drink “down him”. He was put off by the taste of the beer and requested raspberry juice to soften it. The father told him that not liking the drink was part of the enjoyment and he then encouraged him to consume a pint of beer. What did this sequence have to do with the story line of “Glenroe”? I looked for what the Americans call product placement, to see if any of the drink companies had placed their trade name on the glass of beer. It was totally unacceptable for the national broadcasting station and the programme that has won the affection of most of the public to screen this, yet it passed without comment. I scanned the letters page in The Irish Times, which has given over its valuable columns to the most ludicrous subjects, but nothing featured, nor was it raised in the feedback on programmes broadcast.
The drink culture is all consuming. When people go out to enjoy themselves they are expected to drink, regardless of their age. Last night a recent promotional feature for an upcoming programme on RTÉ television illustrated that adults can be persuaded to buy drink for youngsters. The excellent bar staff in the House confirm that on busy nights it is impossible to know who is buying drink, especially if one person buys a number of drinks on behalf of others. This is happening throughout the country and all over Europe.
How long more will we accept a tolerance for the abuse of alcohol? How long more will we as legislators pass laws which are nothing more than gestures? Senator Ryan's proposal is little more than a gesture, albeit a good one. Even if it was to be passed I question if it would be enforced. We are a wonderful country for passing laws and we have enough to ensure that there should be no abuse of alcohol by teenagers, yet we have not enforced them.
Mr. Ryan: Hear, hear.
Mr. Mooney: I am pleased the Minister has imposed restrictions in this section. While they will amount to an imposition on the broadcaster, I feel like King Canute in that the waves are overwhelming us. I am sure other Senators feel the same.
Labhrás Ó Murchú: I have spoken previously on the question of advertising and it is clear that the views expressed in this debate have been made out of genuine concern. Last Saturday I was invited to be guest speaker at the national pioneer ball in Tralee at which 400 attended. I was surprised at the number of young people attending, many of whom hold leadership posi tions. Knowing that I was a Member of Seanad Éireann a number of people spoke to me after my speech. They all expressed concern about recent developments and they pointed out that there was never as much publicity on the abuse of alcohol as there was in the media over the last week.
Who will respond to this publicity? Recently on the Order of Business the carnage on the roads was referred to. Many of the homeless can be traced to their abuse of addictive substances, be they drugs or alcohol. Despite these abuses, commercial concerns are capable of clouding the issue, even though the legislators, parents and communities do not want it. It is also clear from the editorials in the newspapers and radio television programmes that the media do not want it. When we see that a lead is required and there is support on the ground it is vital that something be done.
At the ball in Tralee I found it very difficult to speak to the people who approached me because I had no answers for them. Although we are possibly speaking to the wind here, legislation is vital. Despite this, we should still appeal to young people. I hear too many adults say it is no longer possible to ask young people to be abstemious in their ways. I even heard a priest say it at a recent function. I do not accept that. We have ourselves to blame for under-estimating the commitment and tenacity of young people.
It is not so much the people directly involved who are the victims of the advertising we are debating but the victims who have been mugged or killed because people had to feed their addiction. This is such an important issue that it should be possible for us to take up the momentum that has been created by the media and other agencies in the last week. I do not doubt the Minister's intention to impose restraints and restrictions. In this regard we should not accept that legislative measures will not be implemented. If we take that approach we abdicate our rights and responsibilities as legislators. There must be a forum for pursuing this issue in the future.
I am pleased this debate has been so lively. We represent the vast majority of people who are so concerned with the way social life has developed. If we can take any stand on any legislation we should do so in a strong manner.
Mr. Norris: There is something very unfair and invidious about directing advertising at children, especially the advertisement of toys. It is analogous to the time when supermarkets placed sweets at the checkout where parents would be harassed to buy them.
Mr. Quinn: Never.
Mr. Mooney: They still do.
Mr. Norris: We can exclude my noble colleague, Senator Quinn. If he ever engaged in that practice he has ceased it. It was unfair on har assed parents to be pestered by their children. I have often seen it at checkouts.
Many of the toys advertised are very expensive. Television is a universal medium and it does not merely penetrate the homes of the well to do. It is miserable to create a sense of distinction and disadvantage among children who will see these wonderful toys advertised, pushed and plugged unmercifully. Some of them are unsuitable. There is a consistent violation of the rights of children and it is a great pity.
Miss de Valera: I thank the Senators for raising this issue because it is a concern we all share. I have considered the arguments put forward by the Senators for the insertion of a statutory prohibition on advertising directed towards children under the age of 12. Such a ban would not achieve what is intended. First, dedicated children's channels which originate outside the State would, under the television without frontiers directive, continue to be available within the State. Senators are aware that under that directive, we cannot regulate transfrontier television broadcasts. Many of these stations carry advertising directed at children. As such stations are popular with Irish children, a ban of the kind suggested by the Senator would not, therefore, prevent children's exposure to advertising directed at them.
Second, the imposition of the ban in Sweden has not been entirely successful for similar reasons. Many Swedish stations that were prevented from carrying advertising directed at children on their television services simply sought and received licences outside Sweden to broadcast their services back into the state. Again, because of the television without frontiers directive, this was possible despite the intervention of the Swedish authorities. I am not convinced that the introduction of a blanket ban would achieve the desired effect. I cannot, therefore, support Senator Ryan's amendment.
I have, however, dealt with the issue in a way that will achieve all that is possible to achieve. For this reason, I propose that the commission should be given responsibility for dealing with the issue and I am convinced that this is the only meaningful way to approach the issue. Section 19 provides that on the receipt of a direction from the Minister, the commission must prepare a code under section 19(1)(c) dealing with advertising of direct or indirect interest to children. Section 19(2) provides that the commission should regard the preparation of such a code as its first priority. Most importantly, section 19(7) will require the commission when preparing the code to have regard specifically to relevant guidelines issued or instruments made by anybody who has specific functions in relation to the welfare of children, research which it considers appropriate on the effect of advertising on children and the merits or otherwise and the feasibility of imposing a prohibition on advertising directed at children in general or children under a particular age. Imposing such obligations on the commission will  ensure that the commission must address the issue in a meaningful way.
The commission will be obliged to consider not only how advertising should be directed towards children but also whether advertising directed towards children should or could be prohibited. In that context, I propose that the commission should use whatever research it considers appropriate and undertake, if necessary, its own research as provided for in section 19(8). Section 19(5) and 19(6) provide for a proactive consultation process to be undertaken when preparing these codes.
Many people, apart from those involved in the advertising industry, will have a view in regard to children's advertising, not least children themselves. The national children's strategy launched by the Taoiseach on 13 November last recognises for the first time the importance of giving children a voice in matters which affect them. Indeed, the first national goal for children is that children will have a voice in matters which affect them and their views will be given due weight in accordance with their age and maturity.
The strategy goes on to recognise that one of the issues of concern to children is the impact of information and communication technologies. These technologies include television, video, video games and the Internet. The strategy recognises that research on the impact of such technologies on children is underexplored. Proposed actions in this area include the commissioning of research on the impact of a wide range of technologies on children and that the public and private sectors working in information and communications technologies will develop in partnership a code of ethics in relation to children's issues.
Responsibility for ensuring implementation of the national children's strategy lies with Departments assisted by the National Children's Office. I am happy to be in a position to support the new strategy at such an early stage in its life. My approach to the issue of advertising directed towards children is practical and is not only consistent with but actively supports the aims set out in the strategy.
The Oireachtas should continue to have a role in relation to this issue. Accordingly, I propose under section 19(9) and 19(10) that the commission should, within a year of being directed to draw up a code of advertising directed towards children, report on its obligations in this regard to the Minister and should review such a code every three years. On each occasion a copy of such reports will be laid before each House of the Oireachtas. It is my intention that Government time would be made available to debate this report after it has been laid.
Overall, I share the Senators' concerns in regard to advertising directed towards children. I do not believe that a statutory ban is the best method of achieving a meaningful outcome. I strongly believe that the issue requires careful and sensitive handling, taking on board the needs of Irish children in the first place. By making the  Broadcasting Commission of Ireland responsible for this area and by having the onerous requirements provided in section 19, we have the best opportunity for a well researched, independent and constantly updated practice in this area.
Mr. Ryan: I am delighted with the scale of support for the principle and I fully share the views about the abuse of alcohol. What this amendment and, indeed, the Minister are referring to is not the abuse of alcohol, but the abuse of children. We must remember that advertising directed towards children is an abuse of children. It leads on to an abuse of alcohol and to other things. It is basically a manipulation of children. It was crystallised by what Senator Norris said about the sweets in the supermarket. Although it was a small thing, people saw very quickly what it was, a misuse of children to put pressure on their parents.
What worries me about what the Minister said – I accept her bona fides on this – is that she leaves room for very powerful interests to produce the sort of spurious research which the tobacco industry is still spewing out which suggest, for instance, that cigarette smoking does not cause cancer. A huge lobby all around the world is still saying to anybody who is prepared to listen that cigarette smoking does not cause cancer. In spite of conclusive scientific evidence, they still say that because they use a form of words. It is a bit like this argument that intensive violence on television has not proved to cause violence elsewhere. All I know is that it desensitises people to violence and that the next round produces even more explicit violence because people are desensitised to what they found revolting ten years ago. To attract attention, a further level of explicit violence is necessary so as to create a new sense of shock. Sometimes society, however liberal – I include myself in that – has to say that certain things are wrong.
On the practical side of this issue of advertising directed towards children, the majority of television viewing in this State and in the United Kingdom is viewing of terrestrial channels which are capable of being regulated within the jurisdiction. Some children, including my own, watch a good bit of satellite television, but an overwhelming percentage of our population – 90% or so – watches the terrestrial channels or the UK terrestrial channels. A good section of our society – roughly half – watch RTÉ. If we include TV3 and TG4, the figure would probably be 50% or 60%. It is clear that if we were prepared to go the extra mile and to say that we will not allow advertising directed towards children where we have jurisdiction, it would considerably increase our moral position to start a similar argument at EU level. As long as we sit back and wait for further studies, codes of practice and so on, the rest of Europe can say it is doing the same. Therefore, there is a case on practical, political and moral grounds for us to take action now  rather than wait until some future era when we have more information.
Most of us who have children do not believe we need huge academic studies to tell us that directing advertising at children is a bad thing. We believe we know enough about children to know what this does. It is said that children can distinguish advertising from reality. Of course they can, but that does not mean that advertising does not affect them.
Advertising is a multi-billion pound industry because the people know that advertising works. It works with adults, older people, young adults and children. How it works and which advertisements work is of course a matter of debate, but it does work. Otherwise people would not spend the vast sums of money they do on it. Therefore, advertising directed against children works with children.
The real issue is not whether children know that this is advertising but that directing advertising at children is an abuse of them. Our moral position in arguing the case in Europe would be considerably strengthened if we were prepared to introduce a comprehensive ban on advertising towards children.
Dr. Henry: Senator Ryan has made a very good case for his motion and, rather than saying that the Swedish experiment has not been totally successful, why not join with that country? Then there would be even more channels on which there is no direct advertising at children. It is important to point out that at least it would give parents some choice.
There are devices which can be put on a television set which allow one's children to see only certain channels. Suppose there were Swedish and Irish channels which did not have advertising aimed at children, would it not be quite a start within Europe? As Senator Ryan said, it would give us a much stronger voice within the Union in trying to deal with this matter. Who knows what success we might have with it?
Miss de Valera: This issue is one which exercises all of our minds. We have an onerous responsibility as legislators in this regard. Under  this Bill the commission will be charged directly with assimilating the information that is there. If it feels that further research is needed it will be in a position to carry it out or have it carried out.
I know that Senators feel that perhaps this is putting things on the long finger, but that is certainly not the intention. What I wanted to do was ensure that the commission report to me within one year of its direction on this issue and that we would have a constant review to deal with changing circumstances.
Consultation is very important and I include children in that consultation process. We cannot close our eyes to the fact that we are not just dealing with indigenous channels here. If we were, it would be a much easier matter to address. We must recognise that there are British channels that are easily accessible.
The question of the Swedish model was one that was thwarted because of the existence of the television without frontiers directive. It is not just a question of a number of people getting together and hoping that there will be more and more channels that would be able to make the change. Many Swedish channels that were prevented from carrying advertising directed at children simply sought and received licences outside the country and were then able to broadcast back into the state. They were able to get around the authorities by use of the television without frontiers directive.
We have to consider the realities. We want to provide as much protection as is humanly possible. What I am doing here is giving the commission the direction that this is a matter of priority and that it must be dealt with immediately. It must come back to me within a year of drawing up the code and there will be a review process every three years. That slots into our national strategy for children and the protection that children should be given by the State in all the areas covered by this strategy.
I agree with much of the debate here and much of the views that have been expressed by Senators. However, the way I am approaching this matter covers the issues discussed here and is the most practical and immediate way forward.
Cosgrave, Liam T.
Cregan, Denis (Dino).
Kiely, Rory. 
| O'Donovan, Denis.
Ó Fearghail, Seán.
Ó Murchú, Labhrás.
Tellers: Tá, Senators Henry and Ryan; Níl, Senators T. Fitzgerald and Moylan.
Amendment declared lost.
An Cathaoirleach: Amendment No. 21 is in the name of Senator Ryan. Amendments Nos. 29 and 74 are related so we will discuss amendments Nos. 21, 29 and 74 together, by agreement.
Mr. Ryan: I move amendment No. 21:
In page 21, subsection (1), between lines 11 and 12, to insert the following:
“(c) a code specifying the minimum amount of broadcast hours which must be provided in the Irish language on each broadcasting service and how these hours will be constituted, subject to the approval of the Minister.”.
Is trua go gcaithfear leasú mar seo a chur os comhair an tSeanaid. Tá fhios agam go bhfuil sé leagtha síos sa bhunreachtaíocht go bhfuil sé de dhualgas ar gach craoltóir an Ghaeilge a chothú agus aitheantas a thabhairt don fhírinne go bhfuil an Ghaeilge beo fós, go bhfuil sí á húsáid go forleathan agus go speisialta sna Gaeltachtaí. Ag an am céanna, cé go bhfuil sé sna ceadúnais a fhaigheann na craoltóirí neamhspleacha go gcaithfidh siad cloí leis an gcultúr atá sa tír seo, tá cuid acu nach ndéanann aon rud chun aitheantas a thabhairt don cultural complexity atá sa tír seo.
I am not keen on codes specifying minimum hours because broadcasters can meet those codes with a capacity to show contempt for precisely that which they are supposed to be supporting. That has often been adverted to before, but my understanding was that it was a fundamental condition of the development of independent broadcasting in this State, as it was of RTÉ's development, that some recognition should be given to the diversity of language and to the reality of the existence of a second language in this State which, however weak it might be, is still the chosen language of a significant number and a language towards which a significant majority of our population still shows enormous good will in one way or other, however limited. There is no doubt about the sentiment of the majority of the population about the language.
I am not suggesting we should require that a commercial broadcaster should take up a whole chunk of its prime time broadcasting with programmes in incomprehensible Irish, but I am suggesting that it is possible for them to make some imaginative gesture. A good deal of what RTÉ does about the language is far from imaginative. I notice that Today FM regularly has a small amount of advertising in Irish. It is probably too little but it is probably 1,000%, if not an infinity, larger than the amount of the Irish language one would hear or see on TV3. I am reluctant to go down this road but I would be interested to hear what the Minister thinks of the degree to which the independent broadcaster has met its commitment or its obligations to reflect the cultural diversity of the State, and in particular to reflect the existence of two languages in the State.
Labhrás Ó Murchú: Go raibh maith agat. Tuigim an cás atá á dhéanamh ag an Seanadóir Ó Riain agus caithfidh mé a rá go mbíonn sé i gcónaí an-dáiríre faoi na pointí a chuir sé ar aghaidh anseo inniu. Aontaím freisin nach maith an rud é, b'fhéidir, a bheith ag cur síos marc ag rá go gcaithfidh tú céatadán áirithe a bheith agat. De ghnáth bheadh slite áirithe ag na daoine atá i gceannas ar na cúrsaí agus ar an gcóras craolacháin chun éaló as an rud sin. De ghnáth freisin cothaíonn a leithéid droch-thoil seachas dea-thoil. Tuigeann an Seanadóir Ó Riain é sin é féin de réir dealraimh ón méid a dúirt sé.
It is sad that we have to talk in terms of percentages, and even Senator Ryan agrees that it is certainly not the best road to go in regard to the use of the Irish language. An interesting report came out today on our linguistic prowess in Europe. Were it not for the Irish language, we would have been at the very bottom of the table but because 40% of people said they had a knowledge of Irish and used Irish, it brought us up into second place.
Other people throughout the world are focusing on linguistic ability and we have an opportunity to promote that same ability with a living language which is still spoken as an everyday language. We do not have to be anti-commercial to do so because there is a lot of good will for the language. There is more good will today than there was 25 years ago—
Mr. Ryan: Hear, hear.
Labhrás Ó Murchú: —and we should be responding to it. If there is a reticence at times on the part of people to speak Irish, it is not because they do not have Irish. I do not want to go into the whole language debate but I would like to make the argument in regard to broadcasting because it is such an important medium. One could not learn Irish in school for 14 or 15 years without having some ability to speak it, but there  is a certain attitude to it. Part of that attitude is that if it is not in the environment, whether in the print or the broadcast media, it is regarded in some way as not being a living language. That is not true because it is very much a living language, and broadcasting has to be central to that.
I would not support the idea of putting in a percentage requirement because if the good will does not exist, those in charge would find ways and means of circumventing that requirement, but it is important that the message goes out that if they are using our airwaves and the broadcasting facility, they also must have a commitment to the requirements of the people. It must be recognised that the language has its own status in Bunreacht na hÉireann and the Minister has a legal base for asking that that be done.
I am quite confident that it would be the wish of the Minister that we reflect the goodwill and knowledge of Irish which exists and that, above all, we underpin the report published today which shows that Irish is recognised and used by 40%. The report is based on a scientific survey and should not be ignored in our broadcasting legislation.
Mr. Norris: Ba mhaith liom cupla focal a rá ar an leasú seo. Níl an Ghaeilge agam go flúirseach, ach is maith liom an teanga. I have always enjoyed Irish and think it should be supported. I agree wholeheartedly with what my colleagues, Senators Ryan and Ó Murchú, have said. Nowadays there is a much more positive feeling towards the language among young people, which can be encouraged. There is empirical evidence for this. Within a couple of hundred yards of Leinster House there are three Irish speaking cafes, namely, Fadó in the Mansion House, Trí D just down the road and Dáil Bia.
The language should be encouraged as part of the distinctive characteristics we have as a people. We all know, defective as our Irish may be, how it suddenly appears to improve when we get on the mail boat. Nothing is better for Irish than being abroad, especially in another English speaking country where it is automatically assumed one is English. Throwing in a few words of Irish is extremely useful and gives one a sense of pride in one's origins.
I am not sure what the technical impact of the amendment will be, but I am happy to support the spirit of it.
Mr. Manning: For 50 or 60 years the Irish language was throttled by compulsion, quotas and all sorts of impositions, through having to have Irish to get a job and by being debarred from places in universities because of a lack of Irish. The revival of Irish and the great affection for it which we see today has come about because people are no longer bound by quotas. There is no longer any compulsion – people speak Irish and are enthusiastic about it because they want to be. Imposing quotas on television or radio stations to  have a certain amount of Irish would probably encourage some bad programme makers as they would know that no matter how bad their programmes they would be given a slot on the air. I am utterly opposed to the principle of the amendment.
Miss De Valera: This group of amendments relates largely to statutory provisions regarding Irish language programmes on our broadcasting services in general and in particular in relation to TG4. Few would disagree about the central importance of Irish to our cultural identity and to the importance of maintaining and sustaining the Gaeltachtaí as Irish speaking communities where a person can live and work. There is no shortage of provisions in broadcasting legislation relating to Irish.
The difficulty with quotas as proposed by the Senator in amendment No. 21, and his consequential amendment No. 29, is that it would not guarantee even a modicum of programming of acceptable quality. They are more likely to generate at best a grudging compliance, producing a minimalist attempt at Irish language programming. The way forward must be centred around positive measures such as the establishment of TG4.
I share the view expressed on numerous occasions that TG4 has been extremely important in encouraging people in terms of Irish and in ensuring that many young people wish to be associated with the language and have improved their proficiency. A well funded TG4 will do more in terms of broadcasting for Irish than the impositions of quotas could ever do. I agree with the points made by Senators Ó Murchú and Manning regarding quotas. TG4 has been a tremendous success and I have been very happy to increase its funding from £14 million to over £18 million between 2000 and 2001. I am confident following discussions with the Minister for Finance that significant funding can be secured in the coming years
Because of the issues I have raised I cannot support amendments Nos. 21 and 29. Regarding amendment No. 74 relating to TG4's obligation to provide coverage of Gaeltacht current affairs, section 46(f2>b)(i) more than adequately deals with the station's responsibilities in this regard. The section obliges TG4 to ensure that the programme material reflects the varied elements which make up the culture of the whole island of Ireland and to have special regard for the elements which distinguish that culture and in particular the Gaeltachtaí.
I cannot accept amendments Nos. 21, 29 or 74.
Dr. Henry: I agree totally with the Minister's comments about TG4. It is one of the few stations where one gets original programmes. I am profoundly grateful to them for subtitling so many programmes and for indulging in some Munster Irish, which makes life a little easier for me.
Mr. Ryan: I am not madly keen on this, as I said at the outset, but I am keen on some effort being made to persuade the various broadcasters in the State to use their imagination in terms of their role. This is a blunt instrument and I am not prepared to be shot on the question of quotas as I do not think they work.
To a degree I sympathise with Senator Manning, though his analysis, as an eminent political scientist, was more than a little superficial. However, he is entitled to his political opinions as well. If Irish was not compulsory still in schools people would never have the opportunity to make a choice about it. Therefore, there is an element where compulsion is necessary. If we decided to make Irish an optional subject in schools most people would never have the opportunity to make a choice in their adult life as to whether they wanted to retain or abandon Irish. I do not think the matter can be simplified.
We should either change the law as to what independent broadcasters are supposed to do or else ensure they meet their legal obligations. They have some obligations to reflect the national ethos and the value of Irish and of our own traditions. How they do this is a matter for good broadcasting. If we do not believe we can require them to do this, then we should change the law.
The other element of Irish, which Senator Manning might have referred to, is the degree to which hypocrisy about the language turned people against it, the most obvious example being that from the foundation of the State every public service job except membership of the Houses of the Oireachtas required people to pass a test in Irish. We told everybody at every level of the public service that they had to be able to show some competence in Irish before they could get a job, but we never said the Houses of the Oireachtas had to be able to do business through Irish. Those who made the law which ensured the careers of others were conditional on some ability in Irish never had such a condition imposed on their own career. I do not believe that membership of the Oireachtas should have been conditional on a knowledge of Irish, but it showed hypocrisy in our attitudes.
Writing into legislation an obligation to look after Irish and our cultural traditions, and then nodding and winking and ignoring it because the so-called commercial realities mean it cannot be done, does not do the language any good. We should either take the provisions out of the legislation or ensure that those who are given licences reflect the provisions of the legislation.
Mr. T. Fitzgerald: Tá an-mheas agam ar Senator Ryan agus an méid Gaeilge atá aige agus a labhrann sé sa Tigh. Tá fhios agam go maith go bhfuil croí an Seanadóra san áit cheart. That said, down through the years quotas and directives have not worked in reviving Irish. Much as I respect the Senator and his love and use of the Irish language, I suggest he withdraw the motion.
 About four years ago I was in a position to advertise for a harbour master on behalf of the Department of the Marine and Natural Resources and I thought it would be nice in a Gaeltacht area to state that Irish was necessary. I was informed, however, that this could no longer be done because it would exclude fully qualified French, German and other applicants.
Miss de Valera: I do not believe that the quota system is the way forward. I understand that Senator Ryan is somewhat dubious about his amendment. I appreciate the debate that has taken place here and also Senator Ryan's point with regard to independent broadcasters. However, independent broadcasters look on TG4 as another opportunity for them. They will be well aware that home produced programmes keep the viewers' attention and are the ones we like best. I am not in a position to accept the amendments for the reasons given.
Amendment, by leave, withdrawn.
An Cathaoirleach: Amendments Nos. 22, 23 and 24 are related and may be discussed together by agreement.
Mr. Ryan: I move amendment No. 22:
In page 21, between lines 49 and 50, to insert the following new subsections:
“(6)Within 5 years from the passing of this Act, rules under subsection (5) shall provide that 100 per cent of subtitling of output shall be achieved (including subtitling through teletext) and that 5 per cent. of airtime shall be through the medium of Irish sign language.
(7)Rules under subsection (5) shall apply to the Authority.”.
There has been vigorous lobbying by people on the provision of full subtitling. The Minister has gone a good way in terms of a code of practice in this regard, but we need to go further. My amendment is modest in its provision. There are areas where market selection does not work and people are so outside the capacity to influence the market that without our protection they will never be included. That is why we have anti-discrimination legislation. There are also areas where commercially focused entities like TV3 will always feel that it is too soon for them to be expected to do something just as they will not condescend to broadcast to areas too remote from their Dublin base. Some west Kerry Gaeltacht people are deprived of international soccer matches and “Coronation Street”.
Subtitling cannot be put on the long finger. A deadline is essential and I believe five years is a generous timetable. There is no technical problem about provision of subtitling even for programmes broadcast live.
Mr. Manning: My amendment speaks for itself.
Mr. Norris: My amendment is very relevant. On Today FM yesterday there was a heated and lengthy discussion which illustrated the depth of feeling on this subject. It was quite moving because profoundly deaf people were involved and translation of sign language had to be done with consequent gaps in the broadcast. A radio station could provide for this and explain it to the audience. We must expect diversity and difference and it is almost a question of human rights to be entitled to take part in the enjoyment for which we pay licence fees. If people pay a licence fee they should get this service.
The Minister in section 19(11)(a) provides that the commission shall make rules requiring each broadcaster to take specified steps to promote the understanding and enjoyment by persons who are deaf or hard of hearing etc. That could be just chatty programs saying how frightful or wonderful it is to be deaf – some deaf people promote the idea of it being wonderful. In a recent case there was a contention that deaf people should specify whether they wanted to adopt a deaf child. It is difficult for us to understand that people born deaf feel strongly about this. A high percentage of the Irish population has significant hearing loss and most people are not aware of this. It is estimated that 17% of the population have some form of hearing loss. From 51 to 60 years the figure is 18.9%. It grows with increasing age, so that in the 61 to 70 years age group the figure is 36.8% and between 71 to 80 years, 60.2% of people have significant hearing loss. That is a majority in that age group and we have an ageing population. These figures illustrate the need to have subtitling on television programmes. These people do not have full access to programmes. Aids sometimes help but they are not the full solution. In the UK the Broadcasting Act, 1996, requires television stations to subtitle. It also requires broadcasters to set targets. We have done neither.
The independent television commission, the body which oversees implementation of the Act, has clear and specific guidelines under the Act. In Ireland, RTÉ subtitles a minority of its programmes. This legislation would make a landmark difference. I hope the Minister will be able to accept this amendment, but I expect not because the legislation would be referred back to the Dáil. I have the aroma of failure in my nostrils so I may have to press for a vote. On a previous occasion I bet a packet of polo mints with Senator Quinn that no amendment would be accepted on a particular Bill. He persevered for the two days it took to deal with the Bill, but he owes me the packet of mints. He said to me today that I was right, an amendment will not be accepted and he owes me that packet of mints. I hope I am wrong.
At least RTÉ is making some gestures. The main evening news is now subtitled, and that was in response to a campaign in which members of this House were involved. TV3 had not subtitled  any programmes until “Coronation Street”. The programmes are purchased with subtitling, it does not provide the service itself. I hope the Minister will accept this amendment.
Dr. Henry: I hope the Minister will accept one of these amendments. If TG4, on its limited budget, can readily provide English subtitles in almost all its programmes, why cannot the two major RTÉ channels make a much better effort?
Senator Norris has given the figures on people who are hard of hearing. Unfortunately, the situation is getting worse. Due to noise pollution our young people are not hearing as well as their counterparts of 20 years ago. This is a serious situation due to constant generalised noise pollution around us all the time.
Mr. Norris: What about the Army?
Dr. Henry: What about the Army indeed. I will not go into that because I could be in dispute with the Judiciary.
Some 10% of people over 50 years of age suffer from tinnitus. Many who are hard of hearing or suffer from tinnitus want to be able to enjoy programmes. One can always tell if someone in a household is becoming deaf. That person will need to turn up the television volume and of course that can deafen other members of the household. Subtitling of programmes should be provided as an important public service.
Miss de Valera: Section 19(11) of the Bill acknowledges for the first time in broadcasting legislation the right of people with hearing disabilities to improved access to television services. It requires the Broadcasting Commission of Ireland to make rules in this regard and section 19(12) provides that such rules may include specific targets.
Under section 17, the Broadcasting Commission of Ireland will have specific powers of enforcement in relation to these rules. It is appropriate that this function is within the remit of an independent body responsible for all Irish broadcasters.
Section 19(5) and (6) will require the Broadcasting Commission of Ireland to undertake a wide and proactive consultation process in drawing up codes. I have introduced these provisions with the specific intention of requiring the commission to consult with groups such as those who would like to see more subtitling on Irish television.
I must also bear in mind that it is possible in the context of digital television, for advances in voice recognition technology to allow an even faster move towards full subtitling. There may also be technological solutions that would not be comprehended by the term subtitling.
The insertion of pre-determined targets as proposed in amendment No. 22, or the adoption of one particular solution in legislation, would tie the commission's hands in this regard and pre- empt the outcome of the consultation process. It might also impede the employment of useful technologies as solutions or aids in this area.
In relation to amendments Nos. 23 and 24, the provisions of section 19 as it stands are sufficient to ensure that the issue of subtitling will be addressed by the commission. I cannot therefore accept amendments Nos. 22, 23 or 24.
Mr. Ryan: I am glad that Senator Norris, who is more good-humoured perhaps than I am, adverted to the acceptance of amendments. It is becoming quite obvious that if we discovered a fundamental flaw with this legislation, and I believe there is one, we would still make no progress. The Minister is determined not to accept amendments. I find it almost gratuitously offensive that a Bill which was before the Dáil for 18 months has to proceed through this House in a week. This is very complex legislation and we are told no amendments will be accepted.
The Minister's defence is paper thin on this issue. To argue that because things may improve  in the future we should do nothing in the present is offensive to our collective intelligence. The Minister is perfectly capable of tabling an amendment between now and Report Stage which would provide for total subtitling or some other superior procedure. The Minister is sending us off on a wild goose chase by saying that nothing will be done now for fear that something better will be available in three or four years' time.
It does not matter what we argue, the Minister has a pat reply. The issue is to get through the tedious process of this boring House which is wasting the Minister's time so that she can leave the House as quickly as possible. Nothing we say, it appears, will make much difference to the Minister. It is most regrettable to have to say that.
This is an issue on which the Minister's defence has no basis in reality. To suggest that nothing should be done in the present because something better might come along in the future is offensive to our intelligence.
Cosgrave, Liam T.
Cregan, Denis (Dino).
Ó Fearghail, Seán.
Ó Murchú, Labhrás.
Tellers: Tá, Senators Henry and Ryan; Níl, Senators T. Fitzgerald and Moylan.
Amendment declared lost.
Amendment No. 23 not moved.
Mr. Norris: I move amendment No. 24:
In page 22, subsection (11), line 39, after “her.” to insert “The rules shall make provision for a full subtitling service.”.
Unless the Minister can give an assurance that she will consider this positively before Report Stage then I will have to press for a vote.
Cosgrave, Liam T.
Cregan, Denis (Dino).
Ross, Shane. Ryan, Brendan.
| Kiely, Rory.
Ó Fearghail, Seán.
Ó Murchú, Labhrás.
Tellers: Tá, Senators Norris and Ross; Níl, Senators T. Fitzgerald and Moylan.
Amendment declared lost.
Question proposed: “That section 19 stand part of the Bill.”
Mr. Ryan: I fully support the provisions of section 19(1)(a) on a code specifying standards in respect of the taste and decency of programme material. I wonder why we always take sex and violence as the only definitions of taste. There are many who would argue that a huge part of the cultural values of many television programmes represent a culture of greed and of vulgar consumerism which are as much matters of taste as the other things. More important, will the Minister explain the role of the commission under subsection (3) which deals with the total daily times that shall be allowed for the transmission of advertisements? This section applies to all broadcasters including RTÉ. While nobody would suggest that people would behave badly, what we are doing is turning the Independent Radio and Television Commission into a commission to determine issues, some of which have a considerable impact on the ability of, say, TV3 to compete with RTÉ for advertising or vice versa.
I am concerned that a body which based its achievements on the development of the commercial radio and television sector should be the final arbiter on how much advertising RTÉ should be allowed to broadcast. I am less than happy about it. I believe RTÉ should be regulated and that the competition should not be excessively unfair. That the commission should be responsible for it seems to be inviting the perception that RTÉ has been hamstrung.
Mr. Mooney: In the context of the section and sub-titling, an extract from the 1999 annual report of RTÉ reads:
In 1999 RTÉ was sub-titling 25 and a half hours of acquired material, ten hours of home-produced programming and three live shows per week –“Questions and Answers”, “The Late Late Show” and “Saturday Live”– and is planning to increase sub-titling in all of these areas. RTÉ sought and received reports from all the major sub-titling companies and suppliers for the provision of live sub-titling on all main new bulletins. Mid-December 1999 saw the first in a series of tests to sub-title the “Nine O'Clock News”. RTÉ sub-titled three episodes of “Fair City” each week and one of “Glenroe”. The station began to introduce a new scripting system and on successfully interfacing this with their sub-titling terminals, the hours needed for captioning would decrease and greater productivity would see further improvements.
The House should be aware it is not being ignored and that there is a real commitment to extending sub-titling, despite the fact that I would have sympathy with the motives of those who tabled the amendment.
Dr. Henry: Complaints have been made to me about the lack of objectivity in a series of programmes. I would hope under the codes and rules with respect to programme material that that aspect would be considered carefully because objectivity is very important. Sometimes the coverage of referenda has been severely criticised for being too one sided. I presume under the codes and rules that all those types of issues will be addressed.
Miss de Valera: Section 19(3)(f2>a) to which Senator Ryan refers only applies to broadcasting services that require a contract under this Act or the 1988 Act. It does not apply to free-to-air services of RTÉ or TG4. Currently section 2 of the Broadcasting Authority (Amendment) Act, 1993, provides that the maximum daily and hourly advertising times on RTÉ broadcasting, including TG4, shall be subject to the approval of the Minister for Arts, Heritage, Gaeltacht and the Islands. Section 3 of this Bill repeals this provision. However, the provision is reintroduced in section 31(1) for RTÉ's free-to-air services and in section 49 for TG4's free-to-air services.
Mr. Ryan: I sympathise with and support Senator Henry's position. There is a need in Irish broadcasting for people to understand there is the argument and the presumption. The real difficulty particularly in dealing with referenda and issues on which the country is often divided is that most of the broadcasters tend to come from a cultural ethos where they make assumptions about reality in Ireland. For instance, it comes as an enormous shock to the vast majority of those who occupy RTÉ's headquarters in Donnybrook  that 49.9% of the population would vote “no” in a divorce referendum. It comes as an ever bigger shock to The Irish Times that such a thing would happen. As I said on Second Stage, it comes as a shock to many in RTÉ that 60%, if not 70%, of the population go to church every Sunday. It comes as a huge shock that the GAA is by far the most popular sporting organisation and that, much to my regret, Fianna Fáil is still the largest political party in the State. One of these is unfortunately a mistake on the part of the Irish people but the others are cultural values to which I adhere very deeply.
Mr. Cassidy: The Senator is still part of the family.
Mr. Ryan: The issue is the culture which assumes things about what is Irish reality and which, in many ways, is as censorious as the culture from which we believe we have moved away. I have a strong belief in diversity. Many of the values that I would have subscribed to and which could barely be mentioned 25 years ago are now the mainstream points of view of those who form our views. That does not get away from the fact that Irish society is still diverse and still reflects a range of opinions far more widespread than those which are assumed. It is not that people set out to be biased but their cultural mindset, from where they spring, is quite different if they are familiar with the country and look at the reality in terms of numbers. The requirement to be impartial on issues of controversy is important and needs to be inculcated into broadcasting. The requirement of those who deal with these issues not to inadvertently reflect a particular cultural mindset is equally important.
Dr. Henry: I thank Senator Ryan for his support. The objectivity and impartiality I seek should not just be for news and current affairs programmes. It is also important in the discussion of social issues. For example, there was a programme recently on Fatima Mansions. I am delighted the Government is going to spend a huge amount of money in that area. Some people who live in the Fatima Mansions area were greatly distressed by the programme because they thought it gave a one sided picture of the area and that other aspects of the area were not addressed. From an audience and a TAM ratings point of view, when making good television we must be careful to ensure a lop-sided picture is not given.
Mr. Lydon: I agree with much of what Senator Ryan has said. I believe there is a cultural mindset in RTÉ which—
Mr. Ryan: One of us is finished.
Mr. Lydon: There is always a chance that the Senator will come back to us. As Senator Cassidy said, the Senator is always welcome and is always part of the family. There is a cultural mindset a  lot of the time which is not in tune with what the country believes or adheres to. Media people generally see themselves as having the role of pushing out the boat and bringing us forward into some sort of liberal agenda. Objectivity is important. We are all aware that in the referenda broadcasts RTÉ was not objective. I say that quite clearly. It came down time and again on one side, what would be called the liberal side. This is not necessarily the side that was welcomed. One of the wisest statements I ever heard was from Senator Cassidy who said that the heart of Ireland beats three four time. If you do not understand what that means you do not get elected properly. Many of those who inhabit Montrose would not understand that statement. That is why very often what they broadcast and the philosophy they espouse and to which they try to get us to espouse is out of tune with the rest of the country.
Mr. Mooney: In the context of this debate, I ask RTÉ to consider seriously revamping Network 2 television because it does not accurately reflect the values or diversity of Irish culture. If one compares the schedules between Network 2 and TV3, there is not a great difference. That is not to suggest there is anything wrong with the quality of the programming. Television programming is very subjective but I am talking about the entertainment element of it. Some people like some programmes, others do not. Given the arrival of TV3 and the fact that its main diet of programming in the evening is American imports, there is no longer justification for Network 2 to continue operating a similar diet of American imports.
There is a huge amount of what one might term quality programming available, not just from our sister station across the Irish Sea, which has a worldwide reputation for producing both drama and documentaries to the highest standards, but from much more diverse cultures. I suggest to the RTÉ authorities – I said during Second Stage that RTÉ is listening to this debate, all the managers have a feed right into their offices and those who are interested are probably listening to us right now and getting this debate instantly – that they revamp Network 2 and make it a bit more diverse, particularly as recent audience figures suggest they are losing to TV3. There is a message in there somewhere.
In the context of standards of programming – this goes back to the heart of what many Senators have said this evening and what all of us subscribe to about the values this country has or about its separateness and its ethos – I still do not understand why RTÉ television sports commentators regularly and consistently begins the sports news programme after the main evening news with the results of cross-channel football. Why does RTÉ begin the sports news with information on whether Manchester United won or lost when there is a huge programme of Irish sport on the same day? I am not making a case for soccer,  football, rugby, cricket or any other sport in Ireland, I am just saying that RTÉ is an Irish station and a national network. I would not for one moment expect the BBC or UTV, no matter how big the sporting event in Ireland, to lead their sports bulletins with the results of a sporting event in this country, even though they do so on the odd occasion if it is of an international dimension.
In the context of the section, I am getting these two elements off my chest. This issue is a great irritant to sports people throughout the country because sometimes they do not even get the results of important sporting fixtures that have taken place in other parts of the country. I make that point in the full knowledge that I continue to be employed by the RTÉ radio sports department which has never followed that agenda and which has always been very conscious of its role as the national broadcaster and of the manner in which it disseminates sports broadcasting and sports results. I say that on the basis that some people might say, “Well he would, wouldn't he”, but it is a fact.
Mr. Cassidy: Very good points have been made by people involved in the industry. I welcome Senator Mooney's views on the priority Irish sports results are given on Sunday. Nevertheless, I compliment the sports department on its wonderful coverage of the Olympic Games last year. It is a very professional body and I compliment it on being one of the best in the world in relation to its coverage of the games.
Senator Ryan mentioned the divide. If the divide is so great that RTÉ as the national broadcaster must meet a challenge, perhaps Network 2 could be moved to Mullingar. This would give it a rural base and the rural feel which is necessary. For instance, the Mass on radio on Sunday morning has been moved to medium wave, which is only 20% of the signal strength of FM. Those who are ill at home and not able to go to Mass, those who are in hospital and those who need to listen to radio should be allowed to do so on the strongest possible signal band available.
The Minister comes from a rural constituency and a very proud tradition. The part her family played is unprecedented, with the exception of the Leas-Chathaoirleach's family. We are very honoured this evening to have the Leas-Chathaoirleach and the Minister whose families have given generations of service to the success of Ireland in the 21st century. It behoves the Minister to address the problem on behalf of the decent people who worked hard and long down through the years to make Ireland the great country it is today, so that they can listen to their church service on Sunday morning, whether Church of Ireland or Mass for Roman Catholics. I have as good a stereo in my car as is currently available in the country and the FM signal is certainly four times stronger. I live just 50 miles from the signal in Dublin and 35 miles from the  medium wave signal in Athlone. I love to serve the senior citizens of this country. I love to serve the people who have gone before us and who, because of one illness or other, cannot attend Sunday Mass and listen to it on the radio. There was an effort on RTÉ radio on Sunday evening to justify the position. However, the footsoldiers in rural Ireland who know the terrain and knock on doors know the situation. I would welcome the Minister's intervention in this matter.
There are two very successful soaps on RTÉ, “Fair City”, which will continue, and the legendary “Glenroe” which is being discontinued. “Glenroe” is a must on Sunday night for people in rural Ireland. It has also been a terrific programme in framing attitudes for change. That is one of the greatest pluses of any TV show. Those of us who have been involved in the media down through the years know that the penetration in the marketplace is 70% television, 20% radio and 10% press. There is massive television viewing on Sunday evening when 850,000 homes tune in to watch “Glenroe”. It offended no one and educated the public on various topics. Given that RTÉ's resources are so scarce and that it is looking for decent programming to attract advertisers, “Glenroe” has been one of its most successful programmes, together with the “Late Late Show” and the “Nine O'Clock News”.
I mentioned on Second Stage that RTÉ is the national broadcaster. If we take the French experience and the fact that radio stations in Dublin will not even play 5% of Irish recorded material, how will our young boys and girls have a future or a career if they have no shop window? I say this also in relation to RTÉ because there was single of the day, album of the day and power play of the week when there was one station. It is now easier to get playing time on the BBC, the satellite channels of which there are three, MOR radio across the United States of America or in Sydney or Melbourne than in Ireland where we could create young Irish stars and encourage Irish talent.
As a Member of the Oireachtas I worked hard with the former Taoiseach, Deputy Reynolds, to enact legislation providing for the establishment of local radio. Today there are outstanding local radio stations, including Midlands Radio 3 in my area, Shannonside Northern Sound and Clare FM. They make a tremendous contribution, including the broadcasting of Irish artists. Without them many Irish people would not be able to survive and make a living. As legislators we have created a great national resource and have placed our confidence in people we are told are professional. However, while the French will not allow their songwriters, artists, record companies and publishers to be abused and kicked around, that is what is happening in this country.
I speak in the presence of a Minister with the right attitude. If there is a level playing field in this country for the French and other nationalities, surely Irish artists must also be given an opportunity. The success of Irish artists across the  world is unprecedented in terms of the population of the country. They are given great opportunities by other nations. Nowadays it is necessary to become a star in the UK, America or Australia before being accepted in Ireland. That is regrettable. I understand how it could happen when other parties are in Government, but not when Fianna Fáil is in Government because it has always understood what is happening in the country and has always been proud to be Irish.
This is where the wheel starts to turn. We must do something to create new young Irish talent and to ensure there is an air play of Irish content on every radio station. Radio franchise licences are not issued purely to line the pockets of the licensees. They sell out to people from other countries and cultures who do not care about Irish artists, recorded material and music. The Corrs can be accepted as one of the top groups around the world and U2 can be at the top for many years, but such artists do not get their breaks in Ireland, although they did when RTÉ had only the one channel. At that time the right attitude prevailed. That is not the case today. The chairman of the RTÉ Authority is only in office a few months, but he must look at the imbalance that is not being addressed in this legislation.
The present state of affairs merits action, especially at the time of the Celtic tiger and when there is plenty of money in circulation. I support RTÉ's call for an increase in the television licence fee. The television output from RTÉ is magnificent. Irish artists with talent have an open house at their disposal, including “The Late Late Show”. They are as welcome there as anywhere else in the world.
I am concerned specifically with radio, not only RTÉ radio but other radio stations that have been awarded big licences, especially in Dublin city. I do not refer to local radio because I am pleased to say we introduced the legislation to allow those involved in local radio to broadcast to people who appreciate their work. I acknowledge the great success of these stations. They broadcast what people want to hear.
Mr. D. Cregan: I am not an expert on RTÉ but I would be as expert as the Leader in terms of what the people listen to. It is regrettable that talent is not recognised by radio or television until it is first recognised abroad. Local talent is not looked at, although it must be acknowledged that RTÉ's television programme “Nationwide” is exceptionally good, especially in terms of the local stories it uncovers. Nevertheless, RTÉ has too high an opinion of itself. For example, during the divorce referendum, which was passed by 50.02% of the vote, RTÉ was giving the impression that it would be carried by 60% or 70% of the vote. This reflects badly on the national broadcaster.
I would not put the same emphasis on RTÉ as other speakers largely because the public does not listen to it as much as RTÉ would like us to believe. I spent a long time today travelling on  the road to Dublin. The traffic was stalled at one point because of pothole repairs and I listened with interest to the reports of increased listnership for RTÉ radio programme. John Cregan, who is from Inchigeela, broadcasts an excellent programme. His audience has increased by 8,000. The audience for Pat Kenny's radio show has increased by 9,000. Much work goes into it. Joe Duffy's audience has increased by approximately 8,000. However, only 22% of the public listen to these programmes. To what are the other 78% listening? Given how much RTÉ costs the public, there is very little interest in its output, apart from its excellent television coverage.
It is time to consider what the public is viewing and listening to. It was a mistake to give licences to the multi-channel networks to provide cable television. RTÉ should have been awarded the licence from which it could have charged the other channels to use its cable. This would have given the public the benefits of Sky television and other channels through RTÉ, which would have generated enormous profits for the national broadcaster. Like RTÉ, Sky television broadcasts very good sporting programmes.
Last Saturday as I travelled to Dublin I listened to the rugby match. I am not a rugby but a GAA man, but the match was very exciting. Despite what must have been a huge audience the broadcast closed down as soon as the game was over. No interviews with the players were broadcast because the programmers switched to a race in another party of the country which did not generate anything like the excitement of the match. Had Senator Mooney been in charge he would have been getting the after match news, as he does during his Sunday broadcasts from Leitrim.
Senator Cassidy made a very good point when he said that non-local radio broadcasters do not follow up on issues, be it county games or whatever. Local radio fills that vacuum. I have often heard Senator Mooney's programme on a Sunday evening. The matches he covers are very important, but they are not important to RTÉ.
I do not understand why stations are being closed. If given the opportunity they could broadcast material at a reduced cost. I also fail to understand RTÉ's position. It wants to increase the licence fee and provide us with less local information. I find that very sad. RTÉ employed excellent people in the Cork region but they have been moved to other regions. I do not know who dictates that, but it is certainly not a winner. There is nothing good about the fact that it has 22% of the total radio listenership when one thinks of what it is costing us. It is rapidly deteriorating.
Acting Chairman (Mr. R. Kiely): I think you are making a Second Stage speech. You always appreciate my presence in the Chair.
Mr. D. Cregan: Local talent is not being recognised by RTÉ or generally because there is too much noise on local radio. Senator Cassidy and  others made very strong points in that regard and I cannot emphasise it enough. I am no genius when it comes to talent but I recognise ability. We should recognise it and give people every opportunity but we, and RTÉ in particular, are not doing that. Local television would do that. It is a sad reflection on us. Those in Donnybrook give the impression that they know it all when, in fact, they do not.
Mr. Mooney: I want to correct an impression I may have given, although I do not think I did, when I spoke about putting Irish sports results at the top of the sports bulletin. That was no reflection on the excellent quality and quantity of sports programming on RTÉ. I think Senator Cassidy covered that adequately and I fully subscribe to everything he said. Tim O'Connor, head of sport, and I have been friends for many years. I acknowledge that he was one of those responsible for getting me into sports broadcasting when both of us were young. In the same context, and in response to Senator Cregan, perception is in politics.
The breadth of programming and the quality of presentation in Radio 1 sport is second to none. I am aware of the amount of coverage and the priority it gives to local and regional sport. As a national broadcaster, it fully understands that local radio is filling a very important gap and that it can deal more directly with local games. The Nemo Rangers game was broadcast last weekend because it was an All-Ireland club semi-final. It has reporters and commentators all over the country covering all the major sporting events. I do not want to stand here fulsome in praise for RTÉ because I would be the first to criticise it, but my experience of working with the superbly professional people in the radio sports department of Radio 1 has given me a bias that I may be lacking in objectivity about what they do and how they do it.
One of the last programme responsibilities of the retiring head of radio sport, Ian P. Corr, who retired last month and of whom Members would have often heard, which will be a legacy for him in the future, was the excellent 75th anniversary of sports broadcasting in RTÉ which was transmitted on new year's eve and new year's day. It was one of his last production jobs and I express my sincere appreciation to him for the contribution he made, as head of radio sport and down through his years in RTÉ, to the national broadcasting station. I wish him well in his retirement.
Question put and agreed to.
Sections 20 and 21 agreed to.
Mr. Ryan: I move amendment No. 25:
In page 23, subsection (2), line 45, after “being” to insert “and shall continue to be  known as An Coimisiún na nGearáin Craolacháin or in the English language, the Broadcasting Complaints Commission.”
Cuireann sé ionadh orm go mb'fhéidir go bhfuil an leagan Gaeilge – An Coimisiún na nGearán Craolacháin – imithe. Déarfainn gur botún atá ann agus molaim don Aire glacadh leis an leasú beag seo chun a thaispeáint go bhfuilimid ag cloí leis an leibhéal tacaíochta a thugaimis don Ghaeilge.
Miss de Valera: As I indicated during the debate in the other House, the Irish translation of section 4 of the Broadcasting Act, 1960, as amended by section 4 of the Broadcasting Authority (Amendment) Act, 1976, also provides an Irish translation for the Broadcasting Complaints Commission, Coimisiún an Gearáin Craolacháin. Senator Ryan's amendment seeks to insert into the Bill a provision confirming that the Irish translation will continue to apply. However, I cannot agree to this amendment because it is not necessary and the translation provided by the Senator is not consistent with the translation provided in the 1976 Act. I cannot, therefore, support amendment No. 25.
Amendment, by leave, withdrawn.
Mr. Ryan: I move amendment No. 26:
In page 24, between lines 2 and 3, to insert the following new subsection:
“(4)The Commission shall be a body corporate.”.
I do not want to delay the House but this issue was raised previously and in the other House. What is the legal status of the Broadcasting Complaints Commission? Is it a body corporate? Can it be sued? It is a body which exists but does not have a legal status. That is the reason for the amendment. It is an amendment about which I do not feel strongly but I would like to know the position of the Broadcasting Complaints Commission. Can it be sued and can it own property?
Miss de Valera: Sections 22 to 27, inclusive, provide a clear statutory basis in relation to the structure, funding and remit of the Broadcasting Complaints Commission. Specifically, these sections provide, among other things, for the continuation of the Broadcasting Complaints Commission as a separate statutory entity to be resourced by the Broadcasting Commission of Ireland. They also provide for the restructuring of the membership of the commission to bring it in line with the structures which currently apply to RTÉ and the Independent Radio and Television Commission in respect of numbers and gender balance. They also provide for an extension of the remit of the commission to cover all broadcasters operating broadcasting services under contracts entered into by the Broadcasting Commission of Ireland and breaches of codes developed by that commission and changes in the  procedures which will allow a person to complain directly to the Broadcasting Complaints Commission. These provisions are more than sufficient to ensure that the Broadcasting Complaints Commission can be effective with regard to its functions and that it is not necessary to establish it as a corporate body. I cannot, therefore, support amendment No. 26.
The intention behind sections 22 to 27, inclusive, is to strengthen the existing Broadcasting Commission. As section 22(2) clearly confirms, we are talking about the same commission as already provided for. It is not necessary to set in place a large formal bureaucracy in order for the complaints commission to fulfil its statutory remit as set out in the Bill. Inserting the concept of a corporate body into the legislation could have implications with regard to the funding and staffing requirements of the commission and could result in the establishment of an entirely separate administrative superstructure which I am trying to avoid. With regard to the independence of the Broadcasting Complaints Commission, I am satisfied that the provisions of the Bill will allow the commission to continue to investigate and to make decisions independently of any broadcaster. The commission will be appointed by Government, will publish its own decisions and will report to the Minister annually.
Labhrás Ó Murchú: We all welcome what the Minister has said in regard to strengthening the powers of the commission where complaints are concerned. As evidenced today, we all know the power of broadcasting and the abuses which can attend it. From that point of view, it is important that the public feels relatively secure that any complaint it has will be properly attended to and that there will be the possibility of redress.
It is very much part of the Irish social ethos that to take one's character is a very shameful act. It is certainly very shameful in any community but, at the end of the day, that community will be very confined. To take someone's character in a broadcasting sense is a much more serious matter. It is very easy to ruin someone's standing in the community, to ruin someone's career. It is important for that reason that there are opportunities of redress for the person who has been the victim of what can only be regarded as criminal slander.
It is one thing to have a complaint upheld but the question is whether a decision will be handed down and whether we can be sure that the person does not have to go into a court of law in order to receive justice. Very few people can afford to go into the High Court and pay the costs to have their name cleared. That would be a very difficult thing to do. It may be fine for people who are very affluent, but we owe all our citizens protection.
We live in an age where we have heard much terminology like responsibility, accountability, transparency and purging. It should apply to broadcasting in the same way as it applies to pub lic life, the churches or anybody else. I do not think the citizen would feel it sufficient to have the commission say that a complaint is upheld. There has to be some way to ensure that person receives justice and redress against the slander directed at them.
I am not saying that I believe we should over-control or in any way frighten broadcasters, but there has been a lot of recklessness in this area. We are in an era where the media are gradually pushing out the parameters of what is acceptable. Because of that there is a grey area and the media will continue more and more to go out into deep waters. They know that they will not be contested in the courts by 95% or 97% of people.
There are other areas where complaints apply. There is not a parent in this country who is not anxious to ensure the quality of life of their children and to ensure that those children will have the same opportunities that young people will have in future generations, when the same type of technology and communications exist. Parents demand that radio and television programmes contain what they want for their children.
It can be seen that there is quite a lot of aggravation, I would say unanimously, among the Members who have spoken. One need only look at the letters columns in the newspapers to get exactly the same message. Is it sufficient to make a complaint to the commission and have that complaint upheld with no machinery in place to ensure that whatever led to that complaint will not happen again?
There may be some mechanism within the legislation to ensure that this happens, but if not, we will not succeed in the vision the Minister has for the quality of broadcasting, a quality of broadcasting which accepts the ethos of this country. I am not talking about a religious ethos, I am talking about an ethos of decency and respect for morals, people, communities and minorities. It is very easy to create damage in those areas. I would like to think that it would be necessary to threaten the broadcasting world. However, if they feel they can do things with impunity, as they have done, this is not a fantasy. Not a single week goes by but something happens. We witnessed a case very recently – I did not see the programme about what, I think, are called lapdancers.
Dr. Henry: I am glad the Senator did not see it.
Labhrás Ó Murchú: I never heard such an outcry from parents as I did about that programme.
Mr. D. Cregan: It was only a programme.
Labhrás Ó Murchú: I heard it even from young people who regarded it as degradation of women. It was put out on what was to all intents and purposes a family programme. It was put out on not one but two programmes. Normally the reaction to somebody who raises a question like this is to consider them a square. The reaction is very often  to be jocose about it. However if it has upset people so much, complaints can be made.
It is good that the Broadcasting Complaints Commission will have more powers, but it is absolutely vital that there is some way to ensure that further action is taken once complaints are upheld.
Dr. Henry: I understand Senator Ó Murchú's concern about some of these problems. However we do not want to deny what is happening in Ireland, what is happening just up the road in Leeson Street. I have even heard that maybe Members of the Houses of the Oireachtas have visited these places. I cannot give advice on them.
We have to face the reality of what is going on in this country. It is very important that our broadcasters feel they are in a position to show what is happening. Senator Ó Murchú is right when he says it is essential that if the Broadcasting Complaints Commission finds people to be in breach of the regulations there should be some sanctions. The Bill, however, does not provide for sanctions. I am sure that amendment No. 30, in the names of Senators Coghlan and Manning, which proposes that there should be sanctions, will be supported.
Mr. Mooney: I support much of what my colleague Senator Ó Murchú has said on this matter and he has put it very eloquently indeed. I want to add one or two relevant items. I acknowledge the fine work done by Donal O'Driscoll who circulated a submission to all Members of the House on his views on the strengthening of the commission. Like Senator Ó Murchú, I welcome the Minister's proposals to strengthen elements of the section to make the Broadcasting Complaints Commission more accountable.
In looking through some of the detail of Mr. O'Driscoll's submission, it is salutary to reflect on the fact that in the nine years to early last year the current Broadcasting Complaints Commission processed over 80 complaints relating to RTÉ, including 18 on referendum election issues and five on family life issues. Just over 83% of complaints were rejected. The percentage in the case of referendum election issues was similar and in the case of family life issues 100% of the complaints submitted to the commission were rejected. However, in regard to health boards and other bodies the percentage of rejections was only 30%. Five of a total of seven complaints were upheld. In regard to complaints against independent radio stations in the year ending 1999, four out of five complaints were upheld. Mr. O'Driscoll made the point that the resources allocated to the Broadcasting Complaints Commission are questionable to say the least. The Minister has addressed this and I hope she will address it in the new structures. There will not necessarily be a change in this regard, but it is important to note the view of Mr. O'Driscoll  which I expect is held by an increasing number of people.
While I do not accept the need for the type of sanctions called for by people who want broadcasters to be hanged, drawn and quartered for breaching the Act's provisions, I share the concern expressed by Senator Ó Murchú that it does not appear sanctions of any sort will be imposed on those who breach the guidelines. Mr. O'Driscoll feels that if the commission determines that a broadcaster is in breach of the provisions of section 18(1), appropriate sanctions should be imposed.
I fully appreciate that the Minister can only introduce enabling legislation in this area in which she confers a policing and monitoring role on the commission. I do not believe the record of the Broadcasting Complaints Commission, not so much in it deliberations as in its effect and impact on those found in breach of the legislation, is as thorough as it might be. I do not believe there has been the type of follow through action which we could expect of any other similar position in society where a serious breach of regulations laid down by the Oireachtas has been established beyond doubt.
It does not seem proper that the only sanction would be the obligation to publish the findings. If that is the case, we should not be surprised that journalists and others in the media act with impunity. Irrespective of the nature of a breach, no internal disciplinary procedure exists through which they can be sanctioned and the ultimate sanction, if the commission finds against them, is that the findings will be published. I do not wish to corral the Minister in any way. I acknowledge she is going as far as she can in framing the principle of the legislation and that it is really down to the commission to take action. However, I would welcome her views on the matter.
Miss de Valera: In response to Senator Ryan's earlier question, some of the commission's decisions have been challenged in the courts.
I am anxious to ensure that the new commission will have teeth as I do not believe the commission, as currently constituted, is sufficiently strong. I introduced a number of changes, not least the change in procedures to allow people to complain directly to the Broadcasting Complaints Commission. I take on board the view that there must be some redress for those whose cases have been upheld or otherwise and I agree with Senator Ó Murchú that people should not have to go to the courts to seek such redress. That would be tremendously expensive and very few people would be in a position to pursue such a course of action. We want to ensure fair play for everyone.
Section 24 (10) and (11) relates specifically to the publication of the commission's findings. The fact that the commission's decisions must be published underlines the commission's responsibility  to ensure that broadcasters are accountable for their actions.
The points raised in some of the contributions might be more appropriately responded to in the context of amendments Nos. 27, 28 and 30.
Amendment, by leave, withdrawn.
Section 22 agreed to.
Section 23 agreed to.
An Cathaoirleach: Amendments Nos. 27, 28 and 30 are related and may be discussed together by agreement. Is that agreed? Agreed.
Mr. D. Cregan: I move amendment No. 27:
In page 26, subsection (1), between lines 11 and 12, to insert the following definition:
“‘the Authority' means Radió Telefís Éireann;”.
Miss de Valera: Amendment No. 30 is the key amendment in this group. The amendment is designed to provide the Minister of the day with the power to enable the Broadcasting Complaints Commission to set and impose sanctions on RTÉ for breaches of section 18(1) of the Broadcasting Authority Act, 1960. Section 18(1) of that Act requires the authority to be impartial and objective in its coverage of news and current affairs. The Broadcasting Complaints Commission currently has the power to investigate breaches of these requirements.
The proposal contained in the amendment would be a retrograde step. I do not have any great enthusiasm for placing restrictions, other than the absolute minimum, on journalists and I do not understand why RTÉ would be the only broadcaster to be subject to the proposed sanction mechanism. Broadcasting journalists currently perform their functions in accordance with the terms of the broadcasting legislation, the laws of libel and other legislation, such as the Prevention of Incitement to Hatred Act. In addition, the RTÉ Authority and the Independent Radio and Television Commission – to be renamed the Broadcasting Commission of Ireland under the terms of the Bill – were established through Acts of the Oireachtas as custodians of the airwaves on behalf of the nation. They have been given statutory responsibilities and duties and are autonomous in these areas. Additional functions and obligations will be conferred on these bodies following the enactment of this Bill.
The Broadcasting Complaints Commission has the function to investigate breaches of legislation and will also have the function of investigating breaches of the codes and rules drawn up by the Broadcasting Commission of Ireland under section 19 of this Bill. It will be a matter for the broadcasters, the authority and the Broadcasting  Commission of Ireland to act in respect of breaches in their respective areas and I believe this is sufficient.
While there is no doubt that television and radio are very powerful media with the potential to influence and mobilise public opinion, I do not accept the premise behind this amendment that members of the public are inevitable victims of these media. For the most part, people are mature viewers and listeners who are capable of making their own decisions. I do not believe it is in the public interest to have broadcasters constantly looking over their shoulders lest they upset the Broadcasting Complaints Commission or the Minister of the day.
Like anyone else, I am occasionally quite annoyed by the level of coverage certain topics receive on radio and television but the reality is that there is a small price to pay for the strengthening of democracy which such services provide. This is not a new discussion. There will always be programmes which give cause for concern. I am reminded of a quote in a 1949 report of the Federal Communications Commission which regulates broadcasting in the US. It states:
The standard of public interest is not so rigid that an honest mistake or error of judgment by a licensee [meaning a broadcaster] will be condemned where his overall record demonstrates a reasonable effort to provide a balanced presentation of comment and opinion.
I would not underestimate the importance or difficulty of the task of providing fair and impartial news and current affairs coverage but, by and large, our broadcasters fall into the category described in the quotation. Accordingly, amendment No. 30 should be opposed. Amendment No. 27 is superfluous as the provision contained therein is already contained in section 2 of the Bill and amendment No. 28 would only be necessary if amendment No. 30 were to be adopted.
Amendment, by leave, withdrawn.
Amendments Nos. 28 to 30, inclusive, not moved.
Question proposed: “That section 24 stand part of the Bill.”
Mr. Mooney: I would like to acknowledge the fine work being carried out by the Family & Media Association and a document which it submitted to many of us entitled Media Balance. I do so hoping that perhaps some of the faculties in our universities would give serious consideration to setting up a media monitoring unit. There was a similar unit – I think it is still in existence – in Glasgow University which published a number of books and constantly monitored the output of British broadcasting. I say this not in any sense of creating an inquisitorial court but the debate today and in the other House has reflected the view, and the Minister has shown some sympathy  for that view, that there is a need for eternal vigilance in terms of balance, impartiality and objectivity in our broadcasts, not necessarily or exclusively in the area of news and current affairs but in the whole ethos and philosophy that surrounds broadcasting and those who are presenting programmes. That would be a worthwhile contribution to the overall continuing debate. The Minister correctly said that there will always be a debate of this nature on broadcasting, its standards, nature and the way it is presented to the general public, and a structure such as that which I have suggested would be best established through some of our university faculties where there is already a great deal of research in this area.
Question put and agreed to.
Sections 25 to 27, inclulsive, agreed to.
Amendment No. 31 not moved.
Mr. D. Cregan: I move amendment No. 32:
In page 29, lines 31 to 37, to delete subsection (1) and substitute the following:
“(1)The national television and sound broadcasting service which the Authority is required to maintain under Section 16 of the Act of 1960 shall at all times be a public service broadcasting service as further specified and defined in this Section.
(2)For the purpose of this Act and the Broadcasting Acts 1960 to 1999 a broadcasting service shall be a public broadcasting service if and only if that service is free at the point of reception, as far as technically practicable at any time available to the whole community of the Island of Ireland and the schedules of such service are, save as herein provided, wholly composed of programmes and other schedule material of a public service character.
(3)A programme or other schedule material shall be recognised as being of a public service character if:
(a)It is produced specifically for transmission to and reception by the community of the Island of Ireland or any specific and identifiable part of that community, or
(b) It is of specific, identifiable and demonstrable relevance to the community of the Island of Ireland or any specific and identifiable part of that community and it is a programme or other schedule material which educates, informs or entertains which would not be otherwise available, free at the point of reception, to the whole  community of the Island of Ireland, free at the point of reception.
(4) No broadcasting service shall be a public broadcasting service if it does not offer comprehensive coverage of national and international news and current affairs compiled and presented specifically for transmission to and reception by the community of the Island of Ireland and making up no less that one fifth of the total hours broadcast upon that service in any period of 24 hours.
(5)The Minister may, acting on the advice of the Commission, specify a percentage of the schedule of a public broadcasting service which shall be composed of advertising and the inclusion of such percentage shall not alter the public service quality of such a schedule.”
Miss de Valera: I am surprised to see this amendment tabled by Senator Manning in light of his contribution to the Second Stage debate in which he asserted that RTÉ was at the heart of the country and that the concept of public service broadcasting as developed by it is one which would stand up to the closest scrutiny.
The amendment does not reflect Senator Manning's fine words and would undermine the very existence of RTÉ as we know it. Subsection (3) of the amendment is particularly revealing. Paragraph (f2>b) of that subsection would confine RTÉ to a programme schedule which educates, informs or entertains and which would not be otherwise available free to air to the whole community of the island of Ireland. This subsection, if enacted, would have the effect of regulating RTÉ to areas of market failure only. If the commercial free to air broadcaster cannot or will not provide certain programmes, RTÉ may do so provided the programmes are specific, identifiable and demonstrably of relevance to the community of the island of Ireland. This would reduce RTÉ to the margins, undermine its ability to generate revenue and ultimately undermine the concept of public service broadcasting, which Senator Manning professes to believe in, and I know he strongly believes in public service broadcasting.
As I said in my contribution to the Second Stage debate, it is vitally important that we give some basic guarantees to our citizens. In that context, there is a stronger argument than ever for broadcasting services operating to a strong public service remit providing programming schedules of quality, originality and diversity and catering for minority as well as mainstream tastes. Such services should be provided as a public service and I cannot, therefore, support amendment No. 32.
Amendment, by leave, withdrawn.
Mr. Ryan: I move amendment No. 33:
In page 29, subsection (2)(b), line 55, after “Oireachtas” to insert “and committees established by either or both such Houses”.
This is an argument about definitions. It is our contention and our legal advice that to require the coverage of proceedings in the Houses of the Oireachtas does not constitute a requirement to cover proceedings in committees. That is equally true in the case of the European Parliament.
This is a short amendment but my legally based advice is that committees are not the Houses, and one of the problems Members of these Houses have is that they work extremely hard on very tedious work in committees yet most of the journalists in this House are reluctant to cross the road, where most of the committees meet, to cover those committees. We are entitled to say that committees are a central part of the work of the Houses of the Oireachtas and my legal advice is that the Houses of the Oireachtas do not include the committees. If the Minister has comprehensive legal advice to the contrary I will accept it but my best advice is that one needs to include references to the committees in both the case of the Oireachtas and the European Parliament.
Miss de Valera: The reference in section 28(2)(f2>b) to coverage of proceedings in the Houses of the Oireachtas encompasses coverage of the proceedings of select or joint committees of the Oireachtas. I cannot, therefore, support the amendment. As the Senator is aware, the same provision exists currently and we are already getting the coverage of the Oireachtas so I do not understand the problem to which the Deputy is alluding.
Amendment, by leave, withdrawn.
Amendment No. 34 not moved.
Question proposed: “That section 28 stand part of the Bill.”
Mr. Mooney: Senator Ryan might take up this matter within his own party. There was a tradition among the Whips in both Houses that they held regular meetings with RTÉ on the amount and timing of coverage of Oireachtas proceedings. Unfortunately, that tradition fell by default about five years ago and it is now a moveable feast, particularly on television, which is not in the best interests of the democratic institutions. Although RTÉ stated in its recent presentations to all political parties that it is committed to a continuance of the coverage of Oireachtas proceedings, I hope there might be more regularity in terms of the timing of these programmes because it is obvious that there is still a significant audience for it, as any of the TAM ratings indicate.
Question put and agreed to.
Sections 29 to 32, inclusive, agreed to.
 SECTION 33.
An Cathaoirleach: Amendment No. 35 is in the name of Senator Ryan. Amendment No. 36 is an alternative and amendments Nos. 37, 38, 40 and 43 are related; therefore, amendments Nos. 35, 36, 37, 38, 40 and 43 to be discussed together, by agreement.
Amendments Nos. 35 to 38, inclusive, not moved.
Question proposed: “That section 33 stand part of the Bill.”
Dr. Henry: On the section, it is important to point out that the Minister has decided to give £20 million, which is about 20% of the RTÉ television budget, to the Broadcasting Authority. I wonder if she will always try to keep it at about 20% because if she merely keeps it in line with inflation, the consumer price index or whatever, we could be in a situation, if RTÉ is given a far greater sum, that it will begin to lag behind. That would concern me because, as I said earlier when supporting TG4, it is important that the independent film makers have plenty of opportunity to avail of money such as this.
Mr. Ryan: I have a different concern in that if the Minister does not approve a significant and continuing index related increase in RTÉ's licence fee, and if the £20 million increases with the rate of inflation and RTÉ's revenue was static, then over some years the proportion of RTÉ's revenue which is quite correctly devoted to independent broadcasters will increase. I know it is not the Minister's intention, but one could end up with a situation where the vast majority of RTÉ's programmes are being produced by independent producers. This will happen if there is an indexation of the £20 million and not of RTÉ's income.
Miss de Valera: It is of paramount importance that we have virtual certainty as to the amount of money RTÉ must make available for the commissioning of independently produced programmes under the provisions of the Broadcasting Authority (Amendment) Act, 1993. As I am sure Senators are aware, there has been some dispute regarding the interpretation of the legislation and I have raised the matter in the Bill to get certainty. That is why section 33 provides for £20 million for 2001 with further increases in line with CPI. I take the point made by Senators that there should be some review. There is a review mechanism as obviously things change and such a mechanism is necessary to ensure a fair approach in terms of RTÉ and its responsibilities to independent producers. It was to clear the air with regard to responsibilities in this regard that I have mentioned this specific sum, which I feel is fair, for 2001. While the increases will be in line with CPI, there are mechanisms to ensure the matter is kept under review.
 Question put and agreed to.
Amendments Nos. 39 to 41, inclusive, not moved.
Section 34 agreed to.
Dr. Henry: I move amendment No. 42:
In page 33, before section 35, to insert the following new section:
“35.–Section 5 of the Broadcasting Authority (Amendment) Act, 1993 is hereby amended–
(a) in subsection (1)(a) by the insertion of the following subparagraph after subparagraph (iii):
‘(iv)the persons who undertake the distribution and exploitation of the said programme, other than its broadcast by the broadcaster itself, and any simultaneous re-transmissions thereof,',”.
This is an important amendment as it deals with the definition of what constitutes an independent producer. It is very important for independent producers to be able to decide who will sell their programmes abroad. My amendment would ensure they will be able to choose the best vehicle or company to sell their work.
Section 5 of the Broadcasting Authority (Amendment) Act, 1993, which applies to RTÉ and TG4, provides that the independent producer is entitled to determine independently who appears in the programmes, who makes the programmes and the equipment and facilities used in connection with the making of the programmes. It goes on to provide that the independent producer must not be a subsidiary or a holding company of the broadcaster, which is important. However, one piece of independence is left out, namely, that the independent producer should be in a position to choose the company best suited to selling the programmes he or she makes in foreign countries. My amendment would confirm this principle which applies in law to everything else which is made to be sold. It is a great pity independent producers do not have that facility and I hope the Minister will accept the amendment.
Miss de Valera: Amendment No. 42 seeks to amend the definition of independent television programme provided in section 5 of the 1993 Act. The intention of the definition is to provide for a minimum requirement establishing independence of producers under the Act and is not designed to regulate entirely the relationship between producer and broadcaster or to confine qualifying producers under the 1993 legislation to those who can make their own distribution arrangements. Accordingly, I cannot support the amendment. In my view the proposal would interfere too much  in the relationship between RTÉ, TV3 and independent producers.
Dr. Henry: I am not happy at all about that. Currently RTÉ obliges independent producers to use a separate company, called RTÉ Commercial Enterprises, which sells to companies abroad. I have been told by independent producers, though I do not like having to say it, that they feel this company has an extremely poor record of selling programmes and they see no reason they should be obliged to use it. RTÉ is using its dominant position and independent producers are not truly independent. They should be allowed the freedom to have their programmes sold by whichever company they feel is best able to do the task. I am sure the Minister will know that in a recent White Paper the British Government has confirmed that this choice will be introduced in its new broadcasting Bill. It is already included in legislation in countries such as France, Denmark and Belgium. I cannot see why what seems to be a very reasonable request, namely, to give people the opportunity to sell their products on the international market using whatever company they feel will do the best job, is not accepted. It is a very competitive area and I know many people in the UK and here who produce short, specialised films know the best route through which to sell them.
Mr. D. Cregan: If arrangements are made between the independent programme maker and the commission, can the former use their own person to promote it after it is used by the commission? This section is relevant to section 17 of the 1988 Act and the Broadcasting Authority (Amendment) Act, 1993. The Bill is saying an independent producer cannot independently promote a film even it there is agreement with the commission to do so.
Mr. Mooney: I am somewhat taken aback by Senator Henry's interpretation of this. I have had personal experience as an independent broadcaster of selling a programme to RTÉ and using their facilities. I do not sell the series—
Mr. D. Cregan: That is not what Senator Henry is saying – she is saying the opposite.
Mr. Mooney: What is being said is that the independent producer must sell exclusively through RTÉ Commercial Enterprises.
Dr. Henry: That is my information from independent producers.
Mr. Mooney: Basing it on that interpretation, I am giving my own experience. The individual who is selling the series “Southern Nights” about which I am talking, which was located in Limerick and which was produced three years ago, is also selling independent productions which have been shown on RTÉ, independent of RTÉ Commercial Enterprises. I am very surprised that there could  be a legally binding contract which would stand up in court, as Senator Cregan said, that would exclude the possibility of an independent broadcaster selling their programme through whatever vehicle they chose. I am not sure if the Minister can clarify this, but I am somewhat taken aback by Senator Henry's interpretation. Based on my experience and perception that is not the case, but I stand corrected.
An Cathaoirleach: It is now 8.30 p.m. Will Senator Mooney report progress?
Mr. Mooney: Do you wish the Minister's reply on this?
Mr. D. Cregan: I think we should finish the section.
An Cathaoirleach: Is that agreed? Agreed.
Dr. Henry: The information I have on this is directly from the film makers of Ireland. I was asked to bring it forward.
Miss de Valera: There is no legal requirement on independent producers to sell the distribution rights to RTÉ. The amendment would confine producers who qualify under the Act to those who made their own arrangements. I feel it is not appropriate.
Amendment, by leave, withdrawn.
Amendment No. 43 not moved.
Section 35 agreed to.
Progress reported; Committee to sit again.
An Cathaoirleach: When is it proposed to sit again?
Mr. Mooney: It is proposed to sit at 10.30 a.m. tomorrow.
|Last Updated: 10/09/2010 22:45:23||Page of 8|