Thursday, 19 November 2015
National Cultural Institutions (National Concert Hall) Bill 2015: Committee Stage (Resumed)
We had a fairly good debate last time on the issue of Oireachtas committees and so forth. I wish to clarify one point. Other than in the Committee of Public Accounts, when a chief executive officer is asked about Government policy before a committee, is there a prohibition on his or her making such comments?
The chief executive officer can make a comment on Government policies at a meeting of any committee except for the Committee of Public Accounts. Section 18 deals with the appearance of the chief executive officer of the National Concert Hall before the Committee of Public Accounts. I draw the attention of Senators to Standing Order 163 of Dáil Éireann, which deals with this committee. In particular, subsection (7) provides that the committee shall refrain from "enquiring into" the merits or objectives of a policy.Our intention with the legislation is to mirror what happens at the PAC. Under the rules of the PAC, were a CEO appears before it, the committee shall refrain in public session from inquiring into or publishing confidential information regarding the activities and plans of a Government Department or office or of a body which is subject to audit, examination or inspection by the Comptroller and Auditor General if so requested either by a member of the Government or the body concerned. It shall also refrain from inquiring into the merits of a policy or policies of the Government or a member of the Government or the merits of the objectives of such policies. I am glad to have had the chance to clarify that. What is in the legislation mirrors what is the PAC. The PAC has those rules as set out in Standing Order 163.
Many times we submit amendments and are told that we do not need to duplicate a provision that is already in some other item of legislation. I was going to let that sleeping dog lie in respect of the PAC but if it is already in Standing Orders, it is surely unnecessary to include it in the Bill. It seems to be a double whammy.
What the Minister has said is at odds with section 18(9) which provides that the chief executive officer may not question or express an opinion on the merits of any policy of the Government or a Minister of the Government or the merits of the objectives of such a policy. I am in favour, in particular where the arts are concerned, of the maximum amount of expression. If all we need to do is comply with the PAC rules as the Minister has said, I hope we can get rid of the previous section on Report Stage. It contradicts what the theatre is about, which is free expression. Mr. Panti Bliss went to the Abbey Theatre and made his case. The feminists were there last week and made a case and that is wonderful. It is what theatre does. The earlier section is at odds with what the Minister has just said. Perhaps that matter can be examined on Report Stage.
I may appear to be a cynic but I acknowledge that one of the main concerns with the original draft of the Bill was around support for the National Concert Hall in particular because it is a quasi-commercial organisation and needs to consider how it derives its income from other sources. If memory serves, I think a great deal of its income comes from sources other than the State. During the pre-legislative scrutiny phase at the joint committee, of which I am a member, we spent quite a while looking at this. As such, I welcome section 28. It establishes that a lot of cultural organisations being funded through the taxpayer for artistic expression also have a commercial role whereby they must make money and attract income whether through merchandising, recordings and other commercial ventures.
I have two questions for clarification from the Minister on the section. Do the rules on employment in this area of commercial ventures include a restriction on public appointments? Do the rules on appointment impact directly on the commercial side? We know that through the austerity period there was a prohibition on recruiting key members of staff at all national cultural institutions. We know about the National Library. I congratulate the Minister on the announcement yesterday of the capital investment in that regard. It is much needed. There is a prohibition on keepers, curators and positions all across our national cultural institutions because of the cutbacks. My concern is whether section 28 makes it clear that the CEO of the National Concert Hall, or NCH, can employ people in subsidiaries, joint ventures and commercial activities, a requirement of which is that they ultimately support the overall mission of the body. Will the CEO need to go through the rigmarole of applying to the Minister's Department and then waiting for the Department of Public Expenditure and Reform to weigh in? In that case, six or eight months will have gone by before a person can be recruited. Senators Ó Murchú, Norris, Ó Clochartaigh and I have all been involved in commercial and artistic ventures where the Irish phrase "Tapaigh an deis" is in question. There is a moment when a recording must be done, a broadcast carried out or a tour arranged. Will the NCH be obliged to wait eight months for a piece of paper and for one Minister to talk to another? A year may go by and the opportunity to recruit may have passed. I want clarity and confirmation on that.
My second question is on income. If a national cultural institution makes money, it goes back to the Exchequer. That is the case with the National Library. Suddenly, there is no sign of it. Is there an incentive for the NCH to exploit, a term I use in a business sense, commercial opportunities to leverage the impact of cultural activity? If joint ventures or subsidiaries of the NCH are making money, can the NCH keep the profit to reinvest in its work or does it have to go the Exchequer, never to be seen again? If the money has to go back, that would disincentivise joint ventures or the leveraging of any commercial activity.
The NCH can employ people casually on a commercial basis. Section 28(10) provides that any chief executive of a subsidiary, partnership or other such corporate vehicle formed under such section shall hold office on and subject to such terms and conditions as may be approved by the board of directors and the board of the NCH. As such, it can do that and has the flexibility to employ people casually on a commercial basis. On the profits, the NCH can keep those and they do not have to come back to the Exchequer.
I thank the Minister for alerting me to section 28(10). It refers to approval by the board of directors of a relevant company, the board of the National Concert Hall and the Minister. As such, what is the Minister's role in looking at appointing or acknowledging or confirming the appointment of a corporate vehicle under the section?
Some commentators have expressed surprise that RTE is not mentioned in section 28. Section 28(11) provides that the board of the NCH shall consider, on an annual basis, whether its subsidiary, partnership or other such corporate vehicle formed under this section should continue in existence. An annual basis might not be enough if one wished to have a series of symphony concerts with the full orchestra. Should there not be some way to establish that the NCH is the home playing base of the RTE National Symphony Orchestra? It is not just another customer passing by and having occasional concerts there. It is its anchor venue. How does that stand in relation to section 28(11)?
I want to be clear on Senator Mac Conghail's first question. The concert hall can employ casual staff and the decision is its own. It does not have to come to the Minister to employ casual staff on a commercial basis. If it wants to take on permanent staff, it will have to seek permission because those persons would be employed under the public service arrangements. In the pre-legislative scrutiny report the committee sought to include a reference to RTE. However, having looked at it carefully I believe the relationship between the National Concert Hall and RTE can be more appropriately and flexibly dealt with in a non-statutory fashion. The National Concert Hall will utilise the range of powers and functions which will be available to it under the new legislation, so I did not want to include a reference to RTE in the legislation. I acknowledge, however, that there is a very special relationship between RTE and the National Concert Hall and I expect that it to continue.
There was discussion at the committee on whether RTE should be mentioned and I would have been of the minority view that it should not be. It would, for example, preclude the National Concert Hall from talking to TV3 or another broadcaster. The National Concert Hall board should be able to negotiate on an annual basis and not have its hands tied. If RTE were mentioned in the Bill, it would queer the pitch regarding the negotiations. While there is an elemental and good relationship between RTE and the National Concert Hall, it would not be appropriate to have it in the legislation.
Subsection (1) states that the National Concert Hall can accept gifts of money, land and property etc. Subsection (2) states that it "shall not accept gifts of land without the consent of the Minister". What is so special about land that it is isolated and the permission of the Minister is needed to accept a gift of land?
That was also one of my points. Also, with regard to subsection (4) which reads, "Where an individual gift in any one calendar year exceeds the value 5 per cent of the annual turnover of the NCH, the gift shall be subject to the approval of the Minister", I want to know the thinking behind the requirement to seek approval. I imagine that the National Concert Hall, like any national cultural institution, is trying to raise money and fund-raise. It might do an amazing digital broadcasting deal with a corporate entity. Why, if it is a commercial venture-----
On the issue raised by Senator Norris about gifts of land, the reason this requires the approval of the Minister is just in case the land the NCH is taking over has some unexpected cost or unknown liability associated with it. One has to be careful about that which is why it is included to safeguard against some unknown problem. Regarding the 5% threshold, it is included at the request of the National Concert Hall and it is good governance and procedure to include that safeguard. A 5% threshold on its current turnover of €7 million would be in the region of €350,000.
Section 39 is completely irrelevant to the Bill. I have already made this point and I will not labour it but the Irish Film Board has nothing whatsoever to do with the National Concert Hall and it has just been stuck into this section. I would have preferred if there had been a separate Bill for looking at the film industry in its entirety and the Irish Film Board.