Dáil Éireann - Volume 491 - 03 June, 1998
Mr. M. Higgins Mr. M. Higgins
Mr. M. Higgins: The question I tabled to the Minister for Arts, Heritage, Gaeltacht and the Islands dealt with an issue that has arisen in RTE. She agrees the requirement in the 1993 legislation for commissioning from the independent sector has been good. However, my question dealt with concerns about section 4(7) regarding circumstances which might arise which would give the Minister scope for response. Specifically, the intention was always that the independent sector and the independent unit within RTE were two sources of creativity and both would benefit from interaction. Section 4(7) enabled the Minister to take account of developments within RTE, particularly as they might affect employment. This is referred to in section 4 (7)(a)(ii)(1) — the employment or recruitment of staff by the authority.
A figure of 20 per cent of £15 million was specified in the legislation. In my question I sought the Minister's undertaking that she would exercise her powers under section 4(7) to establish a figure of £15 million for 1999 for two reasons. Talks are ongoing between Film Makers Ireland and the RTE authority about the methodology of calculating the 20 per cent while a root and branch review of employment in RTE is being carried out and I was very anxious that the requirement to commission from the independent sector would not be used as a scapegoat for decisions  that might be taken on employment. For example, the situation arose where in order to cut costs RTE, having originally been reluctant to welcome independent film making, was now turning around to use the existence of the independent film making conduit as a means of eroding its staff, particularly short-term contract staff.
The reason I raise it is that the Minister quoted three factors in her reply on 7 May. She stated that to exercise her powers under section 4(7) would require an interpretation of section 4(8). Section 4(8) deals entirely with the authority's functions and its definition while section 4(7) deals with the Minister's powers. Therefore, that does not stand up. Her second point was it would be time consuming to make an intervention. Unfortunately, there is again a straight answer. The current and prospective financial liabilities of the authority are available in its published annual report. The effect of the operations of the provisions of this section on the employment or recruitment of staff by the authority could be calculated easily. It is a matter that would be clarified anyway by the root and branch review. I simply sought a breathing space to allow an agreement on the methodology and until the review was over.
The performance by the authority of its functions generally under the Broadcasting Authority Acts, 1969 to 1993, is included in the annual report. The last reports on how the film commission worked are in the report that must be placed before the Houses of the Oireachtas annually in accordance with the 1993 legislation. Again, the information is available from that source. The employment of persons in the making of independent television programmes is also available in the report.
The argument that section 4(8) is to be construed in terms of section 4(7) misses the point of the legislation. Section 4(7) refers to the Minister's powers. It does not ask, nor do I, nor did I ever ask, the Minister to interfere in the matter for the authority. The matters of fact described as tedious or time wasting are available in the annual report and that of the independent production unit. It was in an attempt to be constructive that I offered this so that the arrangement between the independent film making sector and the national broadcaster, which have an invaluable partnership, would not be damaged by the other in terms of, for example, the requirements under different legislation being made a scapegoat.
Minister for Arts, Heritage, Gaeltacht and the Islands (Miss de Valera) Síle de Valera
Minister for Arts, Heritage, Gaeltacht and the Islands (Miss de Valera): I thank the Deputy for raising the matter. The Broadcasting Authority Act, 1993, places certain obligations on RTE with regard to commissioning programmes from the independent production sector. Section 4 sets out the mechanism which RTE is required to operate with regard to independent commissions under the terms of the Act. It is required to keep a special account and pay specific sums of money  into it each year. The funds in it must be used only for specific purposes which are commissioning the making of independent programmes as defined in the Act, procuring the formulation of proposals for commissioning of programmes and assisting the commissioning of programmes.
Section 4(8) stipulates the amounts to be paid into the account each year. Up to and including this year, specific monetary amounts are provided — this year the amount is £8.5 million. From 1999 onwards £12.5 million or 20 per cent of television programme expenditure must be provided, whichever is the greater. “Television programme expenditure” is defined in the subsection and it is a matter for the RTE Authority in the first place to interpret this definition. Under the terms of section 4(7), the Minister has power, subject to certain matters, to vary the amount or percentage provided in section 4(8).
In his question on 7 May 1998, the Deputy asked if I would use the powers in section 4(7) to respond to what he termed “the employment consequences mentioned in the legislation”, and went on to suggest that I set the level to be made available by RTE in 1999 at £15 million and that this level should prevail during the cost review being undertaken by RTE and while talks continue between RTE and Film Makers Ireland. As I indicated in my reply on 7 May, invocation of the powers in section 4(7) is not as simple as implied by the Deputy in his question. The subsection provides that in making an order, the Minister must have regard to each of the following matters: the current and prospective financial liabilities of the authority; the effect if any for the time being of the operation of the provisions of section 4 on, first, the employment or recruitment of staff by the authority, second, the performance of the Authority generally of its functions under the Broadcasting Authority Acts, and third, the employment of persons in the making of independent television programmes. I am obliged, therefore, to give proper and objective consideration to each of the above elements if I am to contemplate invoking the power under section 4(7). I cannot simply consider the effects of the section on RTE alone. The work involved would be detailed and time consuming. Each of the above elements would have to be assessed in a way which is and could clearly be seen to be even-handed.
As I indicated in the reply, I am concerned that, in the context of continuing disagreement between RTE and Film Makers Ireland, to exercise the powers in section 4(7) could be construed as an attempt on my part to interpret the provisions of section 4(8). If I was to give any indication that I am prepared to act in the manner suggested by the Deputy, it could remove any prospect of agreement between RTE and Film Makers Ireland. It is my preference that the interested parties should reach agreement themselves  on the way the legislation should be applied in the circumstances obtaining today.
In the present circumstances, while there is disagreement over the appropriate amount to be made available under the terms of the Act, l cannot see how I can meet the obligations placed on me under the terms of section 4(7) without appearing to usurp the functions of the Courts. If I were to consider the effects of the operation of the section on the various matters set down in the legislation, I would need to start with an interpretation agreed between the disputing parties of the elements of expenditure that should be taken into account in determining the amount to be made available for independent commissions under the terms of the Act.
Dáil Éireann 491 Broadcasting Legislation.