Higher Education Authority Bill 2022: Second Stage

Question proposed: "That the Bill be now read a Second Time."

Minister for Further and Higher Education, Research, Innovation and Science (Deputy Simon Harris)

I am delighted to be in Seanad Éireann for Second Stage of this important legislation, the Higher Education Authority Bill 2022. I am pleased to have this opportunity to address the House on Second Stage.

It has been 50 years since the Higher Education Authority Act 1971 established the Higher Education Authority, HEA. That is the context. It is 50 years since we have legislated in this area. The Irish third level education system has been on an incredible journey during that period. In 1971, there were approximately just 20,000 students in higher education and this has increased to over 200,000 students in the present day. It is quite an extraordinary success in this country.

Higher education has become more accessible to all students in all parts of society, although we all accept that there is more work to do. Ireland now has one of the most highly educated workforces in the world. I put to the House that the single biggest transformation in Ireland over recent decades is in and through education. We need to continue that transformation to meet the State's social, economic and labour market needs. In our colleges and universities, we develop the right skills for our future workforce, and we do much more than that. We nurture the societal benefits of education and we build our research capacity to drive forward innovation.

This Bill repeals the 1971 Act and marks a new dawn for our higher education system. It maintains a reformed HEA and brings in generational changes, all of which are key to the development and progress of our human talent and capability.

The Bill repeals the Higher Education Authority Act 1971 and reforms the legislative framework for higher education, enabling improved policy development and planning in the sector, a focus on the needs of the learner, not just the institution, and improved oversight and regulation of higher education institutions, HEIs. The reforms in this Bill will improve oversight, including in respect of financial matters; focus more on the needs of the learner; and enable improved policy development.

Senator Gerard P. Craughwell

I am sorry for interrupting the Minister, but may we get copies of the speech?

Deputy Simon Harris

I am sure that can be arranged. We will make copies available.

The Bill provides a legal basis for the functions of the HEA and the role of the Minister. HEIs are independent entities established under statute or as not-for-profit or private institutions. The HEA is the statutory body that acts as an intermediary between autonomous HEIs and the State. Crucially, the HEA is responsible for securing the achievement of Government objectives for the higher education system and ensuring accountability and securing value for money in the use of hard earned public funds.

This legislation is a key part of the Government's reform agenda and should not be read in isolation. As colleagues will be aware, I published a landmark policy document, Funding our Future, which charts the various reforms made in higher education, in May. After years, if not decades, of people ducking and diving the question as to how to sustainably fund higher education, the Government is answering that question. The initiative will include additional Exchequer investment in higher education, because we recognise that education is a public good; increase student supports; and reduce the cost of education. Investment in higher education and helping families with the cost of education are not mutually exclusive.

The legislation will recognise that autonomy and flexibility are essential features of HEIs. As we carefully go through this legislation on the different Stages, Senators will see that there is a strong recognition of academic freedom, autonomy and flexibility and that there is not a one-size-fits-all model in the context of the higher education landscape. That must, however, be matched with transparent governance and with accountability to students, stakeholders, staff and the public. It is important to note that the legislation will not impinge on the academic freedom of HEIs or their staff in any manner or means. This is a core tenet that will continue to be enshrined in legislation. Institutions will continue to be supported to do what they do best, namely, deliver excellence in education and research and provide places of engagement and insight to support a flourishing democratic society.

The objective of the higher education system is to provide high-quality education that is innovative and adaptive to the needs of the learner; advances equality, diversity and inclusion; strengthens engagement with the wider education system and wider society; creates knowledge; and maximises the contribution of higher education to social, economic and cultural development. The Bill will provide a detailed and modernised framework to provide for the achievement of these objectives within an appropriate oversight and accountability framework.

The Bill was published in January. It has probably been consulted on more than any previous Bill in the history of the State. It has been discussed over a long number of years by quite a few Governments. Good luck to anyone who wants to state that there has not been consultation in respect of it. The Bill completed its passage through Dáil Éireann last week. I am in Seanad Éireann today to seek to advance the Bill during this legislative session. I realise that this is an ambitious timeframe, but I have come here in the spirit of co-operation and wanting to work together.

As stated, there has been extensive consultation on the Bill, including three formal consultation processes in 2018, 2019 and 2021. The general scheme was scrutinised by the Joint Committee on Education, Further and Higher Education, Research, Innovation and Science during a pre-legislative scrutiny process between July and September 2021. There has been ongoing engagement with key stakeholders throughout the development of the Bill. I have made significant changes to the Bill as a result of that engagement.

We have had meaningful engagement. What do I mean by that? We brought forward or accepted the themes of 179 amendments on Committee and Report Stages. We did not just rock up with a Bill and say "off we go". We teased out a number of significant matters, including the structure of the governing authority, environmental sustainability - I compliment Deputy Ó Cathasaigh on the excellent work he has done in that area - the student voice and student engagement. We also did major work in the context of 20-odd amendments relating to the Irish language and strengthening its role. In the Dáil, 97 amendments were made on Committee Stage and 82 amendments were made on Report Stage. These amendments were brought about after engagement with the Oireachtas, stakeholders, representatives and civil society groups, including students, during the passage of the Bill. This has placed us in a stronger position as we debate the Bill in this House.

I will now list some of the matters we have covered so far. We have increased the student voice from two to three representatives on the governing authorities or boards. We have strengthened teaching and research through Irish. We have strengthened provisions for sustainable development, including climate action and biodiversity. We have put in place additional consultation provisions for key stakeholders, including students, HEIs and trade unions. We have strengthened the provisions relating to the autonomy of HEIs, specifically in the context of their relationship with the HEA. We have provided for the incorporation of educational institutions into a technological university, which is very important in terms of St. Angela's College being incorporated into the Atlantic Technological University but which could be important more broadly. We amended the Student Support Act 2011 to provide for the awarding and payment of bursaries and scholarships to disadvantaged students to pursue further and higher education. We have done a lot of good work through amendments in the other House to strengthen the functions of the HEA in terms of cross-Border co-operation.

I will now outline the key sections of the Bill. Part 1 contains standard provisions for a State agency and includes the interpretation section. A key amendment to this part was the inclusion in section 2(3) of a definition for environmental development and sustainability, which significantly strengthens the provisions in this Bill for sustainable development and climate action.

Part 2 includes provisions on the HEA, the objects and functions of the HEA, ministerial powers and information, the board of the HEA, administrative co-operation with other bodies, funding and accountability of the HEA, the CEO of the HEA, and the staff of the HEA. Some key amendments made to this section have strengthened the objects and functions in terms of the Irish language. The functions were also expanded to incorporate an international function for the HEA, and provision has been made to strengthen cross-Border collaboration. An amendment was also made to provide that guidelines issued by the Minister to the HEA may be published, which is an important step in terms of transparency.

Part 3 includes provisions for strategic planning in respect of tertiary education and funding. The strategy for tertiary education is a key provision that enables us to set a long-term strategic direction for tertiary education for the next ten years. Again, key amendments were made to the relevant section with regard to the Irish language and environmental development. This will ensure that these issues are central to strategic planning in the sector. Amendments were also made to provide for consultation with a list of relevant bodies, including institutions, students and trade unions.

The Bill provides for the funding of HEIs and other bodies in accordance with conditions of funding as specified by the chief executive. Important amendments were made with regard to the balance between the powers of the CEO and the board of the HEA. There was a useful debate in this regard during the Dáil engagement.

Part 4 provides for engagement with students, including engagement at national level, and HEIs and contains provisions with regard to a student survey. Part 5 provides for the development of an equity of access, participation and promotion of a success plan and provisions for lifelong and flexible learning. Part 6 includes provisions for the supply and processing of personal and non-personal data. Part 7 provides for the designation of institutions of higher education and the obligations of certain designated institutions of higher education. Part 8 provides for the oversight provisions by the HEA of designated institutions.

A number of amendments were made in the Dáil to strengthen the autonomy of HEIs. These include: providing that the CEO must have significant concerns prior to requesting a HEI to undertake a review; providing for HEA board approval for a number of remedial measures which could have a reputational impact on an institution; removing the provision with regard to providing assistance to a HEI following a review and replacing it with a provision that a HEI may request assistance, which is an amendment that was sought by the sector; and incorporating an appeal of the appointment of a reviewer and a stay on the appointment. Part 9 provides for the establishment of an appeals board by the Minister within 28 days.

Part 10 provides for amendments to the Universities Act 1997, including provisions relating to the appointment of new smaller, competency-based governing authorities. Again, key amendments were made to this part. Ultimately, what we are trying to do here is have smaller governing authorities and more external representation. That does not mean representation necessarily appointed by the Minister and can be more broad in terms of how external appointments are made. What we are trying to do is move to a competency-based composition of a governing authority.

Trinity College Dublin is legally different and will therefore be permitted to appoint an additional six fellows to its governing authority in recognition of Trinity's distinct legal basis and, in particular, the distinct role played by the fellows of the college.

Part 11 provides for amendments to the Technological Universities Act 2018. Part 12 provides for amendments to the Regional Technical Colleges Act and the Regional Technical Colleges (Amendment) Act. Part 13 provides for amendments to the National College of Art and Design Act 1971.

Senator David Norris

Bong.

Deputy Simon Harris

As I think Senator Norris will like to hear, Part 14 amends the Housing Finance Agency Act 1981 to amend the definition of "institution of higher education" to which the Housing Finance Agency can provide support.

I suggest that we take the rest of my script, which outlines the provisions of the remaining sections, as read. I look forward to debating the Bill with Senators.

Senator David Norris

We all do.

Senator Niall Ó Donnghaile

I sincerely hope that Senator Norris saying the word "bong" is included in the transcript

Acting Chairperson (Senator Pat Casey)

Senator Aisling Dolan has eight minutes.

Senator David Norris

I have never smoked with a bong in my life. Give me a joint any day.

Acting Chairperson (Senator Pat Casey)

Members, behave.

Senator Aisling Dolan

I thank the Minister for coming here to debate the Bill with us. The third level education landscape has been transformed over recent years. We have had the creation of the brand-new Department of Further and Higher Education, Research, Innovation and Science. There has also been great focus on third level, which is crucial. There has been the development of technological universities to drive innovation in new campus towns and cities across the country. The third level qualifications of a degree, master's and PhD are now more accessible to people everywhere.

The announcement earlier today regarding additional places at third level is welcome, especially after the increases that each of the HEIs delivered over the last two years. The HEIs have been incredible, in particular when one considers that they were at the pin of their collars.

There has been so much work within the Department and the HEIs to deliver this. The expansion of third level, as the Minister mentioned, is targeting college places as well as the apprenticeship programme. One thing we have focused on, which has been a target throughout his Department, is further and higher education and how important it is to have that. Even if there are not opportunities for people to continue under further and higher education, they can still achieve degrees. There is no longer just that traditional path we always speak of, whereby people go directly to college. There are so many people who sometimes cannot afford the costs of going to college, whether because of rent or having to travel for hours on end. I studied in Coleraine and we talked a lot about transport on buses. It involved an eight-hour journey, with two buses, a train and another bus, to get from Ballinasloe to Galway, then to get a bus to Sligo and to go over to Derry, before travelling to Coleraine and Portstewart. Students do this. They travel and put in the hours but we have to show there is more accessibility, and through the technological universities and campuses, we can now do that.

I like the fact that IT, architecture and construction, nursing, engineering and education and welfare are now part of this apprenticeship programme and that 16 new apprenticeships have been rolled out. Members also were given a breakdown and although it does not include the medical student places, I acknowledge the work of the new technological universities that have come into being and are really delivering here, as our HEIs have been doing over recent years.

The core objectives of this legislation on the HEA relate to promoting and supporting our higher education institutes. It is about excellence in teaching, learning and research, and that is down to investment not only by our Government but also from non-Exchequer areas. We need to ensure our institutions will be able to take an income from international students, which was such a loss over the two years of lockdown. Moreover, they need to be able to take an income through Horizon Europe and other international funding programmes that reward success at an international peer-review, competitive level.

We also need to promote and safeguard the interests of students and advance equality, diversity and inclusion in higher education. Much work has been done by our HEIs, particularly at National University of Ireland, Galway, under the consent framework. That has been crucial in tackling an awful lot of challenges we are seeing in our third level sector. Our HEIs are taking the lead and rolling it out, with an evidence base around it, in order that we will have safer places for students and staff in HEIs.

The accountability framework, too, is very important. I have spoken to representatives of the Irish Universities Association, IUA. As the Minister stated earlier, there are 179 amendments on which he has engaged over a long consultation process, and this has been going on through a number of Departments. It is crucial that the voice of all stakeholders be heard and engaged with and that we come out with legislation that will really work for us in Ireland because we want our institutions to be world-class. They need to be world-class.

Senator David Norris

Trinity College is.

Senator Aisling Dolan

The current legislation is not fit for purpose. The Bill before us needs to come into play right now. A body of work is being done by all our HEIs and the stakeholders that have been involved but we need to crave success and excellence and there needs to be a sense of competition between our technological universities and our HEIs. We need to reach those rankings again. We need to ensure that through our peer-review system, which has been set up by Science Foundation Ireland and the Irish Research Council, IRC, we will reward and support as much as possible those research teams that are achieving success, but we cannot do that until investment is in place. When it is, universities will in turn also have opportunities to bring in further income based on that Government investment.

It is crucial the international reputation of the higher education sector be aligned. The Government and representatives such as the Minister, the Department and the HEIs must be aligned in what we want to see as success for the third level sector. Success comes in many different forms. It can be 200,000 people achieving qualifications, Ireland ranking high in innovation, and building research teams that excel and draw down funding. If we do not see that happen at every level in every section of our third level, that is where I would say we would need to come back to it. There is going to be a lot of monitoring and review of this legislation. We need to show it is fit for purpose, and we will talk through all these sections as we move through it.

I appreciate the fact the student voice has been included, particularly at secondary school level during the lockdowns and earlier during the pandemic, and that we are now bringing this through at third level as well in the form of the competency-based nature of the governing boards. They will be crucial to support our HEIs where there are gaps because they will be able to offer that student voice. Other areas we have spoken about and which the IUA has raised relate to the chief executive of the Higher Education Authority and how we are going to think about financial issues. The CEO's role will be under the funding conditions set out for each of our HEIs and there will be able to be a quick and speedy response in funding. There will also be an appeals process and board approval for a lot of other measures when it is considered what is going to be done in terms of the outcomes of any type of review. It is important the policies being developed by the HEA will also include a public consultation section and that it will allow all stakeholders to feed into these policies that will be developed to help improve the sector for all of them.

As for the three-person appeals board, I acknowledge that amendments have been taken on board relating to the ten-year period of experience for the barristers and solicitors. We are also looking at ensuring that someone who sits on that appeals board will have knowledge of the Irish third level sector. Of course it can be someone from an international background, but he or she will need to have knowledge of the Irish third level landscape. We are very different from many other countries. The UK is no longer in the EU and is no longer drawing down non-Exchequer funding from Europe, while the US has the National Science Foundation, NSF, and the National Institutes of Health, NIH, a very different model from that in Ireland. It is crucial that anyone involved in the appeals process really sees what is needed here.

This legislation is absolutely necessary because we want a world-class third level sector and that will happen only when we have this legislation in place to support our HEIs.

Senator David Norris

On 8 June 2021, the President of Ireland, Michael D. Higgins, stated:

It is not an overstatement, I believe, to make the argument that the ruination of the university tradition, by a process of attrition, surrender to the quiet hegemony of that which is really unaccountable, is at hand. Indeed the very raison d'être of the university, I believe, is at stake.

That is a very interesting quotation from the President of Ireland. There has been an enormous increase in the number of students, something I have noticed myself. When I was studying at Trinity College, there were 2,000 students; now there are almost 20,000, a tenfold increase. Of course, that is in parallel with the general trend for the increase in numbers receiving a university education.

This is a large and complex Bill of more than 140 pages. I am very pleased we have in the Public Gallery my distinguished colleague from Trinity College, Sean Barrett, pro-chancellor and former distinguished Member of this House, who has been very helpful in preparing me for this legislation. The US Supreme Court interpreted the royal charters and letters patent of Dartmouth College in 1819 as prohibiting the interference of the Governor of New Hampshire in the governance of the college because charters are binding in perpetuity, including in the post-independence US, but the Minister has refused the request of my distinguished colleague, Sean Barrett, to place the document in the library and I ask him now why he refused to do so.

This is access to information, and information informs debate - that is what it is for. In addition, the Government cannot dismember a charter foundation and we promised not to do so under the Belfast-Good Friday Agreement, which respects diversity of tradition and identities. I have heard a lot of blather from the Minister about diversity and so on but he has shown no respect for it. The Bill assumes the Trinity College Dublin, TCD, charters and letters patent can be altered as in the Bill. The contrary case is that the charters and letters patent are binding in perpetuity on both the monarch, in the case of the United Kingdom, and successors and on the bodies in receipt of the charters.

Trinity has a distinct diversity of identities, which should be respected. The Minister is smiling away happily, but I do not know why. Perhaps he is enjoying and appreciating my eloquence.

Deputy Simon Harris

I am not accountable for the monarch.

Senator David Norris

Alas. What a pity.

May I point out to the previous delightful speaker that Trinity is the highest ranked university on this island? We were proud that at one point it was ranked 50th or thereabouts globally. Given that there are universities like Oxford, Cambridge, Dartmouth, Yale and Harvard, that was a wonderful position for a small island like this to be in.

In terms of diversity, this situation looks to be an exact parallel with the great fight by the great dean of St. Patrick's Cathedral, Jonathan Swift, to maintain the independence of the speaking voice, and the intellectual and academic freedom of, the dean of St. Patrick's Cathedral in defiance of the authorities at the time.

The Minister is perfectly right to make the point that all of the universities are in receipt of substantial funds from the Exchequer. For this reason, they should of course be accountable. However, the Minister is taking unto himself very considerable powers. I will give two examples. According to the explanatory memorandum on Chapter 2:

Section 11 - Power of Minister to give directions to An tÚdarás provides that the Minister may give a direction in writing to An tÚdarás requiring it to comply with any matter referred to in this Act including having regard to any other enactment or the implementation of any policy or objective of the Minister or the Government. It provides that An tÚdarás shall comply with any such direction and shall inform the Minister of the measures taken to comply with that direction. It also provides that the Minister may amend or revoke any such direction in writing.

In Chapter 3, section 16 deals with membership of the board of an t-údarás and provides that the board will have 12 members - a chairperson and 11 ordinary members - and that all appointments will be made by the Minister. According to the explanatory memorandum:

[Section 16] provides that the board shall consist of persons who, in the opinion of the Minister, have sufficient experience and expertise in certain competencies. It also provides that not less than 1 of the members shall be a student or a full-time officer of a national student union, nominated by the national student union.

In Chapter 2 on the provision of funding by an t-údarás, section 37(1)(c) - "a person who, or a body which, provides support services for higher education" - needs greater clarification. It is vague, so I would be grateful if the Minister provided a more detailed opinion on this matter.

It is lamentable that there should be such a grotesque grammatical lapse in the explanatory memorandum regarding section 75, which reads: "Section 75 – Provisions relating to Trinity College, Dublin provides that the governing authority of Trinity College Dublin shall comprise of 17 members". You do not "comprise of". You either "comprise" or you are "comprised of". I would like people to note that.

There is confusion over the repeal of section 19 on visitors. This section provides that the Government can appoint a visitor to a university. I originally believed this to be an interference with Trinity's right to nominate the visitor. The visitor is someone to whom students or staff can make an appeal directly. In my time, it was a great man, the late Mr. Justice Theodore Conyngham Kingsmill Moore. I do not believe that anyone else in the House will remember who he was.

Senator Michael McDowell

I do.

Senator David Norris

Very good. Well done. There is some confusion in this provision and it should be cleared up.

Despite the Minister's undoubted intelligence - he is probably the most intelligent person in government-----

Deputy Simon Harris

I am blushing.

(Interruptions).

Senator David Norris

There is a blush.

Senator Michael McDowell

A little.

Senator David Norris

All of that said, I am not sure how much experience the Minister has in higher education apart from being a student. Perhaps he has that experience.

The joint committee wrote:

It is widely recognised that legislative reform will be of limited value unless it is accompanied by a sustainable funding model. The HEA, as part of its core remit, must retain a key role of advising the Minister on the level of public funding required to enable HEIs to fulfil their responsibilities under the legislation and their performance goals agreed with the HEA.

This is crucial. Without funding, nothing will get done. No matter what different vantage points we assume, we all want to improve education.

Finally, in conclusion, at last and at length, the Irish people have had a love of education since the earliest and darkest days of our history. At a time when it was forbidden for Roman Catholics to attend school, there were hedge schools. During the Dark Ages, we were the beacon of intellectual light for the whole of the Continent.

Senator Malcolm Byrne

I welcome the Minister and thank him and his officials for the work that has gone into this comprehensive legislation. In a previous role, I was familiar with some of the background work involved.

The Bill aims to replace the Higher Education Authority Act 1971. The HEA was established three years prior to that. The Minister referred to how our higher education system had transformed considerably over the half century since. Approximately one in ten of those aged between 18 and 20 years of age used to go on to higher education. Today, that figure is more than six in ten. Our universities have a much greater research function now and we have seen the growth of the regional technical colleges, RTCs, which became institutes of technology and technological universities. There is also a greater emphasis on second-chance education now.

Of importance is the recognition of the change in the role of the university, particularly by the State. Previously, attending university would have been viewed as training for the professions. Now, there is an understanding about how universities are driving innovation, contributing to solving societal and economic problems, and shaping Irish and global life.

Any regulatory regime that we put in place through this legislation or otherwise has to be concerned with trying to ensure that we continue to meet the objective of having a globally recognised excellent system of higher education. I have always had a problem with university rankings because they only measure certain elements. It is important that we have a globally recognised excellent system that meets the needs of Irish society primarily. We can be proud of the contribution made by staff and management down the years to this achievement.

Previously, economic policy was based a great deal on tax and talent. In this century, the battle will be around talent. As a result, we must ensure that our universities are the driving forces behind talent and that we support them in that regard.

Since a great deal more power is being granted to the HEA under this Bill, it is crucial that the authority have an adequate number of staff to deal with some of the new responsibilities being given to it. Echoing something that Senator Norris said and perhaps speaking from my experience in another life when I worked with the HEA, another matter that is crucial but is not sufficiently spelled out in the legislation is the relationship between the Department and the HEA. For example, the Minister can give direction to the authority regarding its annual plan and so on. There may be a requirement to spell that out in more detail in the legislation.

We need an administrative and regulatory structure that supports academic excellence. One mistake that is often made is that academic autonomy does not mean the ability to do whatever you want. Academic independence must be respected. Due to the challenges we had in some of our higher education institutions, this legislation addresses some of the questions around financial accountability on the part of our institutions.

I will turn to the objectives and functions set out in sections 8 and 9. I refer to two of the functions that were set out in section 3 of the original 1971 Act. One was "promoting an appreciation of the value of higher education and research" and another was "promoting the democratisation of the structure of higher education". I am a little concerned that in the functions being provided for within this Bill, there does not seem to be the same level of emphasis on those aspects. This is at a time when the concept of liberal education is under threat. I am not even talking about complete totalitarian regimes but what has happened in Hungary, for instance. It is important that we have an authority that promotes and respects the democratisation of higher education, as well as the value of higher education and research. I am not just talking about the economic value or the value for the individual but the role of higher education in contributing to institutions. That is something the Minister might reflect on. While there is rightly a lot of emphasis on the access agenda, the 1971 Act referred to "promoting the attainment of equality of opportunity in higher education". There is less talk of promotion in this Bill. The language used is about supporting it. There is a slight difference between promoting and supporting but we can get into some of that later. It is important that we raise awareness about access.

Having watched the debate on the Bill in the Dáil, it is clear the Minister took on board many of the proposed amendments, addressing quite a number of concerns of various stakeholders. It is certainly the case that the authority, an t-údarás, will now have a far more regulatory rule, which will move it into a different position. It is also proposed to reduce the board size of an t-údarás. To follow up on Senator Norris's point, there is no difference there as the Minister has always appointed the members of an t-údarás. It is just a case of having a reduced board, which is to be welcomed. Regarding the composition of that board, there is the question of international experience and internationalisation. There should be a guarantee of one member of an t-údarás who is either from outside the State or from inside the State but with experience of international education.

I welcome the commitments Senator Dolan mentioned around student engagement in Part 4 of the Bill and access and lifelong learning in Part 5. I ask the Minister to give some assurances on the issue of designated institutions and authorised providers. This was raised on section 53. The Minister will be aware that a question has arisen around the National College of Ireland and its future status with regard to the legislation. Perhaps he might provide us with some clarity on that matter. On oversight, in section 66 there are nine remedial measures the CEO can take with regard to the designated institutions. The Minister said that only three of those require HEA board approval. In the interests of checks and balances, nine should require some reference to the board. Otherwise it would be conferring a lot of authority on the chief executive.

University governing bodies are considered in many cases to be too large and unwieldy. Provisions in this regard are set out under section 76. Given that the role of the governing body is the strategic direction of the university, appointment to its governing body should increasingly be competence-based. We need to find mechanisms within our universities to represent the views of all stakeholders. Given the modern role of universities, which we have set out, that competence-based requirement will be essential. Broadly, I am very happy with the legislation and I hope the Minister will look favourably on some of the amendments tabled on Committee Stage.

Senator Pauline O'Reilly

The Minister is very welcome. Having been a member of the joint committee that did pre-legislative scrutiny on this Bill, many of the recommendations have been taken on board by the Minister so I thank him for that. However, I will outline some areas where improvement is needed. The lack of independence of thought leads to real issues across the globe. Education is front and centre when it comes to many of the problems across the globe. Much of the authoritarianism and populism is driven through education systems. Our education system came from being a method of control of the population. It has changed from that but it would be a grave misunderstanding of the current system to say it is autonomous and independent. It is to an extent but not having State control does not mean there is no control. It does not mean it is fully independent because everybody is dependent on something else for their funding. At the moment many institutions are heavily dependent on State funding, which simply is not enough. I think the Minister would admit that himself. He has made huge changes in that regard.

In 2018, a UNESCO paper stated, "Recent trends in privatization and marketization of education ... tend to favor a vision of education as an individual and consumable good". That is what we have to make sure we do in this Bill. What we are doing is stating that there have to be State controls when it comes to our education system. Otherwise we would be allowing ourselves to be at the whim of other forces. I have the utmost respect for institutions around the country. We have not gotten to that point but there is a real danger that we could, as has happened in other jurisdictions where people are essentially following the money. When there are large industries bringing money, particularly for research, it is very hard to say no to that. One of my colleagues mentioned the international element and what is measured. Oftentimes what is measured is research output and not teaching or that social good. The core of this Bill is about education as a public good and that is why it is a good Bill. It is long and lists stakeholder after stakeholder.

An awful lot of the recommendations of the committee were taken on board, as well as those made on Committee and Report Stages in the Dáil. The Minister brought his own amendments and did the work in engaging with stakeholders. He took on board the amendments that were put before him and tabled his own to take those things into account. I note that he has included trade unions as stakeholders, which is a massive step forward. During the pandemic we saw the absolutely essential role trade unions play in our education system. The unions, particularly the student unions at secondary and third levels, were in the centre when dealing with the pandemic. As was said by the Minister for Education and officials from her Department, the education system simply was not flexible enough at the time to deal with the pandemic. There will be more and more challenges like that in the future, climate change being one of them. There will be an influx of people from other countries, as is happening now with Ukraine. We need a flexible Bill and that is what this is. It is a flexible Bill listing stakeholder after stakeholder to be engaged with as institutions change and flourish into the future. The Minister has taken on board the recommendation that students be involved. Having sat on the board of NUIG, soon to be the University of Galway, I understand that it is a core requirement that the people who are in the middle of education are actually sitting there.

That has been taken on board. I agree that this element of competency-based members and representation must be met. One of the difficulties is that people are on the údarás for a long period. They are all people who have left education whereas students are coming and going. That is the way it is written in at the moment. I would like if we could perhaps discuss that on Committee Stage and Report Stage. I know from personal experience that when people are coming and going on a yearly basis, they do not perhaps have the same influence as those who have been there for a long period. There is that institutional knowledge. There is an automatic respect for somebody who has been sitting in place for a long period. We need to make sure students are respected equally for their contributions.

It also seems there are points where it is written in that training goes one way and flows towards the students as opposed to it also being about listening to students. If there is to be full engagement, that is what we need to have in that regard. This Bill has huge teeth, particularly because it allows for the withholding of moneys. The real strength in this lies in withholding public money if things that are in place to actually protect the well-being of our population are not met. That must be front and centre when it comes to education. People should choose to go into education because it pays a dividend to them, and not just in economic terms but in terms of improving their lives. Of course, education is also about ensuring we have a strong citizenship and that we are working towards common goals. It should also give something back to individuals, however. That is why the emphasis that has been placed on equality, diversity and inclusion is incredibly important.

There is a missing piece here. I will go back to that issue around private schools and private institutions in general. It is still the case that nine of the 20 schools that sent the highest proportion of their students to third level education in 2020 are fee-paying schools. The Minister has addressed that in some ways but perhaps not through this Bill. I wonder whether there is something we can do around that. He has provided, for instance, €3 million for the higher education sector for more autistic inclusivity and to help autistic students navigate their time in third level. He has also provided €3 million each year until 2026 in order that universities can come up with pathways for students with intellectual disabilities. Those are hugely welcome, as is the widening of Student Universal Support Ireland, SUSI, grants. I could go on. I know there is much there but when it actually comes to the Bill, I wonder whether more can be done. Perhaps we need to look at that on Committee and Report Stages. I thank the Minister for his time.

Senator Niall Ó Donnghaile

Cuirim fáilte roimh an Aire. I am taking this item on behalf of Senator Warfield, who sends the Minister his apologies for not being available this evening.

I am actually quite thankful that Senator Norris has left the Chamber. This is not out of any disrespect whatsoever but, because this is not my bailiwick, I am going to read a speech that has been provided for me. I remember in the previous term that Senator Norris would regularly reprimand people for reading speeches.

Senator Gerard P. Craughwell

We will do it for him.

Senator Niall Ó Donnghaile

Senator Craughwell should settle down. Before I begin, I share the sentiments of other colleagues. I recognise and appreciate that substantial progress has been made with regard to this Bill. It will improve the overall governance framework. As other colleagues have acknowledged, however, there is room for improvement.

Sinn Féin supports legislative reform in higher education to clarify the role of the Higher Education Authority, HEA, increase inclusion and access and ensure proper governance and accountability. I recognise that the Minister and his Department have taken on board a number of recommendations Sinn Féin put forward during pre-legislative scrutiny and on Committee Stage in the Dáil. These include issues regarding the role for the HEA in promoting an Ghaeilge or the Irish language, increasing North-South co-operation, increasing the number of board members and the removal of the limit on numbers of members on academic councils as well as others.

I welcome the inclusion of student representation on the board of the HEA. I also call on the Minister to take on board the committee recommendation that trade union representation should be included on the board. Likewise, I welcome the inclusion of a specific role for the HEA in promoting cross-Border co-operation in higher education. The Committee on Education, Further and Higher Education, Research, Innovation and Science also specifically called for a role for the HEA in promoting cross-Border student enrolment.

I note and welcome that the Bill now makes specific reference to the role of the HEA in promoting the Irish language. I assume this was an oversight in the general scheme and I am glad it is now included. That said, the role given to the HEA in promoting the Irish language is weaker in the 2022 Bill than it was in the 1971 Act it will replace and the Universities Act 1997. This should be strengthened.

Despite these changes from the general scheme and original Bill, there is still substantial room for improvement in this legislation. We will continue to work constructively with the Minister in the hope that this gets the Bill to where it needs to be. As things stand, I am not satisfied that the Minister has struck the right balance between the autonomy of institutes of higher education and governmental oversight.

We have engaged extensively with the sector over recent months and the management of every institution accepted the need for the highest standards of transparency and accountability for public finances. That is beyond question. The Minister will always have Sinn Féin's support for any policy that achieves that. However, there are many proposals in this Bill that reduce the autonomy of institutes without any clear relationship with transparency or accountability. We have yet to see or hear a convincing justification for dictating such rigid governance structures, such as the mandatory 19-member limit on governing bodies. These are unpaid positions. Every governing body has its own unique make-up and tradition. Slashing the numbers allowed on the boards seems like a decision that colleges are more than capable of making themselves provided they meet certain standards of competency and external representation. The substantial reduction in size will put more strain on the members and reduce the representation on the boards of different sectors of the institution and, indeed, the wider community. The removal of broad representation on the governing bodies would be a real loss.

It is unfair to say this legislation will move the sector to a competency-based governance model. Governing bodies are currently made up by members of the academic and non-academic staff, undergraduate, graduate and postgraduate students, alumni, local authority nominees, trade union representatives, employers' organisations and others.

In 2018, a Fine Gael Government passed legislation on technological universities that stipulated a 22-person governing body or 26 in certain cases. A few short years later, that has been reduced even further again without any clear explanation as to its merits. We welcome the move to increase the number of student representatives on governing authorities from two to three on Report Stage in the Dáil. Governing boards benefit and are strengthened by external membership but, again, this legislation mandates a majority of external members without clear justification or explanation.

I wonder how strong the justification could possibly be, given board exemptions have been granted to Trinity College Dublin already. I have no issue with Trinity College Dublin being shown flexibility to reflect its unique governance structure. I believe different models can be equally successful provided certain safeguards are in place to ensure good governance, transparency and accountability.

Trinity College Dublin is not the only college with its own unique history and governance structure. The newly formed Atlantic Technological University will soon make Castlebar a university town. This multi-campus technological university involves thousands of students spread across locations in Castlebar, Galway city, Killybegs, Letterfrack, Letterkenny, Mountbellew and Sligo. The geographical spread and multiple campuses mean it is very distinct from most other colleges yet it is provided with no flexibility. To anyone watching - student, parent, academic staff or otherwise - this looks unfair and elitist. The Minister could look again at the rigid, overly prescriptive governance structures and adopt a fair approach that can be applied to everyone without damaging the unique characteristics and differentiated missions of different institutions.

Another issue is that the Bill grants sole powers of review to the CEO of the HEA and empowers the CEO to make a determination on whether further action is necessary following a review. The right of higher education institutions, HEIs, to appeal a decision by the HEA must be robust enough to provide HEIs with assurances that they challenge decisions.

We have met representatives of most third level colleges in the State over the last 12 months, all of whom were more than happy to be held to the highest standards of accountability as recipients of public funding. That said, there was also a great deal of concern about the watering down of their institutional autonomy. Good governance and accountability can be ensured without sacrificing the autonomy of third level institutions.

The greatest testament to governance of higher education is that they have managed to maintain the performance of the system over the last decade.

We have seen over the last ten years of austerity in the higher education sector that, fundamentally, governance is not the main issue facing the sector. Legislative reform will be of limited value unless it is accompanied by a sustainable funding model. During that time there has been piecemeal privatisation and deep commercialisation of public third level education. Today, most universities have a majority of revenue that comes from sources other than the State. Some of that is positive such as winning competitive research funding or attracting more international students. However, it has been driven out of necessity due to what the Irish Universities Association labelled as State divestment from third-level education.

The ethos and focus of these centres of education and research have been shifted towards commercial consideration. Huge amounts of time and energy are spent operating on a commercial basis, which is energy that would be better spent on education and research. Of course I do not blame the individual institutions as this has been the explicit policy of successive Governments. We see this in fees because this country has the highest undergraduate fees in the EU. In addition, fees at graduate and postgraduate levels are even higher. There are extortionate on-campus accommodation costs. Despite a student accommodation crisis, there are universities that reserve half of all of their on-campus accommodation for fee-paying international students as a means of attracting a revenue stream. We now have a ratio of 23 students per academic staff member, which is far higher than the European average of 15 students.

Colleges still operate under the employment control framework that is austerity policies. The seven universities now hold around €1 billion of debt with hundreds of millions of euro already agreed to be borrowed. These loans often come with commercial conditionality. In other words, money can be borrowed for student accommodation on the condition that market rents are charged.

Sinn Féin will always engage seriously and constructively on issues of governance in higher education but this legislation will be meaningless unless we are serious about funding the sector. Sinn Féin believes that the HEA should be given a clear mandate to protect the public nature of the education system.

Senator Annie Hoey

I thank the Minister for attending. I have a particular interest in this legislation, having been a member of the governing body of the UCC and the HEA board in a previous life. This legislation has been mooted for a while and it is good to see it come through the Houses. I welcome the fact that the Minister has had extensive engagement both with the joint committee and in the Dáil on amendments and stuff like that. I hope that he is just as enthusiastic with amendments in this House.

A number of issues that I wished to mention have already been raised and I shall repeat them. I wish to discuss the balance of power in terms of the CEO of the HEA. The Minister has agreed that three out of the nine areas would have to go to the HEA board for permission for the CEO to follow up on. Given our capacity nowadays to meet within 24 hours on Zoom, we do not have to wait to get people in. The old argument that the board could not be constituted quickly enough for a serious matter no longer stands because, as we have seen over the past two years, we can constitute people from any part of the world within quite short notice. The old argument is not a strong enough reason not to stipulate that one needs HEA board approval for all nine areas.

In the past few days I spoke to representatives of different groups who feel very strongly about this matter. It seems that we have nearly gotten there with three areas and we should go the whole way with the remaining areas. As a former member of the HEA board, I know that if something serious arose that the CEO felt required a level of mediation or whatever then we would all hop to it pretty quickly. In addition, if one is a member of the board then one is committed to education. Therefore, it would be worthwhile for the Minister to consider expanding this provision to the nine areas.

I feel that this legislation centres power with the one person who is the CEO. We are proposing legislation that depends on the will of one person to do what is right, to initiate and to be the judge. Is there a gap between the spirit and intent of this legislation? I ask because that is a lot of judge and jury for one person.

As some groups have mentioned, there are issues with codes and guidelines. There is a list of codes and guidelines. However, if one does not comply with them then there will be a series of consequences. I do not believe that these are guidelines if there are consequences. The Minister will appoint the members of the appeals board and one member must have legal expertise such as a barrister or equivalent. It is important that the legislation stipulates that a person has higher education knowledge. It is obvious that one of the members must have higher education knowledge. If the legislation explicitly stipulates that one person must have legal knowledge then we should stipulate that a person has higher education knowledge, and perhaps even from an international perspective. I hope that the appeals board will be extremely rarely used but if we are going to establish a board then we may as well properly constitute it.

Originally, this Bill was due to be about governance. Perhaps it is testament to the Minister or his team that this Bill has gone a little beyond a governance framework. It is a broad and encompassing Bill. Obviously, the Bill does not deal with the future funding of higher education and the committee is compiling a report on funding.

I note the correspondence that the Minister had with the Union of Students in Ireland, USI, around dealing with the issue of a students' union and defining a students' union. That issue could not be covered in this Bill. The definition of a students' union, who they are and who the Government can engage with have been matters between the old Department of Education and now we have a different Department. A variety of political parties have consistently opposed the basic concept of defining a students' union, which seems strange. There is no great threat to be derived from defining students' unions. Without being too pedantic, a student union is for one student and a students' union is for all the students. I thought that it might be a bit crazy to propose a cacophony of amendments seeing as "a student union" seems to be the agreed terminology. Following the point that Senator Norris made about grammatical errors, we students' union people will live on with our "s".

The term "value for money" has been used quite a lot when discussing this legislation. Without question, we want to see value for taxpayers' money. Sometimes when we talk about value for money we gloss over the fact that the Government supplies the money and for quite some time institutions have run things while being quite underfunded. It is important to put on the record that while we are in favour of value for money, the institutions have worked in a very tight system that creaks at the seams to provide value for money when the money was not there.

A previous speaker alluded to the following matter. When we consider the TU mergers one realises that there are multiple campuses. Those mergers have been worked on for quite some time and are quite delicate sometimes. Has the Minister given consideration to temporarily allowing the governing bodies to allow for representation by a variety of campuses that will eventually merge into one TU? Has this matter arisen? I suggest that a temporary facilitation for the next ten years is given to allow a smooth merger and thus listen to the voices on the boards.

Concern has been raised about support staff and trade union representation. I am concerned because both at a local governing body level and at the HEA level there is no specific reference to representation.

This Bill is significant legislation that will shift how the HEA will operate. A new Department has operated for two years. It is important that the HEA is not reduced to an entity that just distributes money and then chases people when they do not distribute money. Even when I was a member of the HEA board, the HEA advocated and lobbied on behalf of the sector.

It is important that it does not get shifted the other way where the HEA becomes something of a sheriff around town as to who gets what money and what happens with it and then loses the ability to advocate on behalf of what is a very large sector, given the HEA has over €2 billion. I am still not entirely sure if the balance as to where that needs to be is exactly right in the legislation, but I look forward to engaging with the Minister further as we go through the different Stages.

Senator Eileen Flynn

As always, both in the education committee and in this House, I am privileged to be before such a passionate Minister when it comes to higher education, and I mean that. I welcome all attempts to modernise the higher education sector and I hope we will be able to do that in this Bill. However, Senators Ruane and Higgins and I will be proposing a number of amendments to the Bill to address the serious concerns the Civil Engagement Group has. The Higher Education Authority Act is 50 years old and society and education have changed a great deal in that time, so it is time to take the necessary steps to evolve our education system too.

I welcome every opportunity to advance equality, diversity and inclusion in our education system. There is a clear lack of those in the higher education system and I support the Bill's attempt to address that. I am glad that the Bill proposes proper accountability for the funding given to institutions as we must ensure that funding is used wisely and fairly. I am also glad that the Bill proposes a clear commitment to better engage with students, but I question why it allows only for three students on university governing bodies. We should be actively listening to student representatives to address students' needs properly. I strongly believe that more than three students should be on the university governing bodies.

As a member of the education committee, I took part in the pre-legislative scrutiny of the Bill and I am very disappointed that the Government decided against the recommendation to include specific reference to a universal design. We must ensure that all education environments are designed to be made accessible to all people regardless of their age, disability and background. Including universal design in the legislation is the only way to do this and ensure that it happens.

I am glad the promotion of North-South co-operation, as recommended by the committee, has been included in section 9 of the Bill. Living in a Border county, I know how important student mobility is, as is collaboration with the higher education authorities in Northern Ireland. I am also glad that the Bill includes the committee's recommendation to ensure meaningful representation of traditionally under-represented social groups in higher education. We must ensure equal access and representation for all in our higher education institutions. We also must make sure that everyone has an equal opportunity to be successful in those institutions. It is great to see the limit of seven on the academic council is removed. At the same time, I am disappointed that the legislation is not fair to all higher education institutions in the country. Despite the fact that we are introducing legislation to reform all institutions, it appears as though one institution secured a key exemption from the proposed reforms. It has been stated that Trinity College Dublin will be the only university permitted to retain a majority of the internal board and will have 22 members on its governing body, while other universities will have 17 members. It is very unfair to treat institutions differently. If we really want to move forward and modernise the education system in this country, we must do it together and do it fairly.

I understand the concerns regarding the independence of universities and I agree with the importance of promoting student representation. However, the changes should be uniformly applied to all 24 institutions addressed in the legislation. We cannot introduce legislation that does not treat all the institutions equally. I urge the Government to consider this. We must ensure independence within governing bodies and I would be wary of increased Government control within these bodies. We need assurance from the Minister that this will not affect the independence of the governing bodies of our educational institutions.

I join USI in expressing concerns about the reference to value for money. We must ensure that the conversation does not move towards one of further marketisation of higher education.

Again, our group will have a lot of amendments to add to the Bill, and as the Civil Engagement Group engages with people, it is to be hoped we will be listened to.

Senator Maria Byrne

I thank the Minister for coming to the House today to discuss this important Bill. I have a keen interest in it. I served in the previous education committee when this legislation was mooted. I also served on the governing bodies of both a former institute of technology and the University of Limerick, so I have had a great interest in this area.

I welcome the fact that the Minister is amending the Housing Finance Agency Act 1981 to allow educational institutions to take out loans and build their own student accommodation. This has been a major problem for a long time and it is welcome to see this included in the legislation. I am aware that one or two of the ITs approached the Minister or had engagement with the Department regarding their ideas on this. Certainly, in Limerick there is the University of Limerick and Mary Immaculate College, as well as a college of higher education, so there is a huge student cohort. A shortage of student accommodation has been a major issue for a long time.

I also welcome that the Minister is awarding payment of bursaries and scholarships to students to facilitate persons who are educationally disadvantaged. That is very important, particularly in the context of lifelong learning where people from all walks of life are being encouraged to go forward. While I realise the Minister has developed the apprenticeship side of things, many people are now going on from apprenticeships to complete a degree and to go on further. That is to be commended.

There are a few issues, some of which have been raised already. In terms of getting approval, sometimes it went back to the chair of the HEA but I believe it should require the approval of a number of board members or even the full board. One of the Senators pointed to the importance of Zoom now and the fact that one can organise a meeting online quite quickly, whereas in the past it would have been necessary to bring the board together. Many things can happen online now and I believe it should not just rest with one person and that a number of people having the power to make approvals should be considered.

Regarding compliance with guidelines, codes and policies, I understand that due to different things that happened in the past, there is alleviation there where perhaps financial penalties can be applied to somebody who steps out of line.

There has to be a balanced approach as well. I would just put that on record.

In terms of the appeals process, I note in the legislation that the Minister is proposing a team of three. I would like him to consider somebody who has international experience. I know that in other countries they have brought in people with a particular level of expertise. That has added to proper engagement and to bringing in different perspectives. This is something the Minister could look at. Limerick College of Art and Design is part of Tús and, because art is such an international experience, they bring in many experts from outside of Ireland, as well as drawing from our own level of expertise. It a matter of sharing resources and sharing thoughts. Having that international experience brings a different and more balanced perspective.

If the Minister is going to set up an appeals board, I would like to see someone on it who would have that area of expertise. Overall, I welcome this legislation. It has been crying out for amendment. It has been 50 years since it was amended and much has happened in that time. Our education system has changed so much. I know about the passion, determination and the drive not only of the Minister but also of his staff in the Department. I commend all on the legislation coming forward and look forward to working with the Minister on this in the future.

Senator Michael McDowell

I welcome the Minister to the House. This is a very important Bill. Sadly, this House has got to the stage where contributions are limited to five minutes, which is inadequate. W.B. Yeats’s great speech “We are no petty people” would have been ruled out after about two paragraphs, given the way we now operate things.

I have huge problems with this Bill. I want to outline some of them to the Minister. First, I do not think it is correct that the Minister should choose the appointees to the Higher Education Authority in the way that is provided for in this Bill. We can look at the Judicial Appointments Advisory Board and other institutions. There, at least, they have to go through the Public Appointments Service, PAS, or something to be approved for membership of these bodies. Yet, here, the Minister has total discretion in relation to appointments. The criteria for appointment are so general that effectively the Minister of the day will choose the board of an t-údarás.

The second issue I want to raise is a really serious problem with the legislation. Could I draw the attention of the House to section 143 in respect of guidelines, codes and policies? An t-údarás may prepare or adopt and issue guidelines, codes or policies to designated institutions of higher education for any purpose relating to this Act and concerning any matter or thing referred to in this Act or any other enactment, and the implementation of any policy or objective of the Minister or the Government. It can say, "It is Government policy to do this and we are issuing a guideline." What is the consequence of that? We then find, if we go to section 64, that the chief executive officer of an t-údarás is entitled to determine that an institution is in breach of a Government policy guideline and can take certain steps in relation to that. The steps are set out in section 66. At the moment, with the exception of the measures as in subsections 66(3)(a), 66(3)(b) and 66(3)(d), which relate to a requirement to undertake a course of training or review of the strategic development plan of the institution, the chief executive officer is entitled to make a determination under this section without the consent of the board. One of the things he can do without the consent of the board is the withholding by an t-údarás of funding due to be paid to the institution of the refund of funding paid by an t-údarás to it. Why would something like that not require a majority of the board to say they agree with this, especially if the power of admonishment to the institution does require a majority consent?

I am talking about the whole idea of university autonomy. Government policy is to be handed to a university and the person who enforces compliance with the Government policy is the chief executive of an t-údarás. He can make a decision to withhold funding from an institution if it is not complying with it in his view. The only remedy is to appeal to an appeals board. The appeals board deals with appeals not merely from him but from the Minister. The Minister chooses the people who will be on the appeals board to decide his own case. This is fascinating. Under the Act, he chooses the three people. It is a very unusual situation. The Bill says that they are to be independent, but you choose three people to vet yourself. That is wrong. All of that is wrong.

There is another issue, which is a minor matter. However, it is something that I would ask the Minister to take account of. In a number of cases, if a person is sentenced to imprisonment by a court of competent jurisdiction, they cease to be a member of the governing body or whatever it may be. If, for instance, the president of the student union is given a seven-day public order offence for a demonstration, or something like that, he or she is gone. That is not right.

I have only had five minutes. I do not want to delay the House. There is the combination of the power of the Government to enact a policy being handed to the chief executive of an t-údarás and for him to cut off funding to a university or institute of higher education for non-compliance with Government policy. The whole idea of university autonomy is being inverted by that. A lot more thought needs to go into this Bill in order to conserve autonomy.

I will finish on this point. We do not need to rush this through. It has gone so far. We are coming up to the end of July. I know even from the courts that everyone suddenly gets into a neurotic state of mind and thinks that if it is not done now it will never be done. However, this Bill needs very serious further consideration. It should not be guillotined and it should not be rushed through.

Senator Jerry Buttimer

I have the misfortune of having to follow Senator McDowell. He makes a pertinent point in two parts. I congratulate Senator Dolan on the work she has done in the committee on the Bill but it needs further parsing and teasing out. Perhaps if Senator McDowell reviews section 68, it may answer some of his questions. I was reading this the other night. I was wondering why, to my mind and from that initial cursory reading, we were giving huge power to the chief executive. Then I note in section 68 a provision on the appointment of a reviewer of a designated institution of higher education. I wonder if this addresses Senator McDowell’s points. Maybe it does not. Section 68(9) states that “An tÚdarás shall consider the final report”. However, being an educationalist, I note that there is a board of management of a school and there is a governing body. There needs to be transparent autonomy that allows for whatever determinations that are made to be clearly laid out. I would always be concerned if the power is vested in a single person, whoever that person may be.

By the same token, and I apologise that I cannot find the answer to this, can the Minister answer a question on the composition of the governing body of University College Cork? Are the lord mayor and other councillors still included in that position? I hope that this is not taken away. If they are not included, that would present a serious problem. I would be completely and diametrically opposed to removing the lord mayor of Cork from the governing body of University College Cork. I mean that. I think that would be a wrong move. It would take away a tradition that has served the university well. I would hope that we can change that.

In saying all that, I welcome the Minister to the House and commend him on the work that he has been doing in the Department. Tonight, we are here to discuss an important aspect of the work that he is doing. We must try to ensure that the cost of putting students through college is reduced.

On "Morning Ireland" earlier, the Minister gave me huge hope and confidence and supplied a breath of fresh air. I thank him for that. The cost of putting students through college is far too high. The Government must and will help to assist students and their families. As the Minister indicated, and it is in the preamble to the legislation, the trajectory of people attending college has grown exponentially. That has been quite evident in many of our university cities and towns. I am very fortunate to come from Cork, where we have a very fine institution, University College Cork, and the equally fine Munster Technological University, formerly Cork Institute of Technology.

I thank all the people involved in the administration and teaching of third level education. Our higher education system has changed so much since I was in it. I welcome the innovative changes that have taken place. Equality of access is important. I remember the day the former Minister for Education, Niamh Bhreathnach, and then Taoiseach, John Bruton, announced free education at third level. Unfortunately, that pathway to third level education has not been as equitable as we would have liked and hoped to see when it was launched on that momentous day.

Not everybody can go to third level. That is why what the Minister is doing as regards the apprenticeship programme is absolutely critical. I say that as somebody who taught the leaving certificate applied and recognises the totality of our education system, the wholeness of it and the fragility of the student who struggles and ends up trying to do leaving certificate plus but is not able to. The Minister is correct that we have let apprenticeships lie for a decade. What he is doing with apprenticeships is fantastic. This morning's announcement regarding the different types of apprenticeships and their development is one all in this House should support. We should work with the Minister to ensure that we support the key areas in which we need people and that the issue is addressed in the context of the whole-of-government approach.

I will also refer to the increased places the Minister has offered in Munster Technological University and University College Cork. I am looking to see where Munster Technological University is on the list of new places. University College Cork has been given 51 places, but I am wondering if I missed Munster Technological University. If I did so, I stand corrected. I do not see it on the list, however. If it is not there, why is that the case?

I thank the Minister for this important Bill. I have a couple of concerns that I will come back to on Committee Stage because I am very passionate about education. The Minister's contribution to higher education makes this a good day. I thank his officials. Today's announcement of 1,000 extra college places and the development of a new apprenticeship programme is one we should celebrate. We should work to ensure we put career pathways in place for people on both paths.

Senator Paul Gavan

I thank the Acting Chairperson for allowing me some time. It is good to see the Minister. I will make a short contribution as my colleague, Senator Ó Donnghaile, made a broader one.

I will raise an issue regarding the University of Limerick. As the Minister will know, the Bill was amended on Report Stage last week to allow for the extension of governing authorities that are due to expire. The relevant text can be found in the Bill, as amended by Report Stage amendment No. 98 in the Dáil. It reads:

... where the term of office of all or the majority of the members (including the chairperson) of a governing authority of a university expires by the effluxion of time during the period referred to in subsection (2), the Minister may, at the request of the governing authority of the university and if the members concerned so agree, extend the term of office of those members for such period (that is not longer than the period referred to in subsection (2)) as the Minister may determine to facilitate that governing authority to comply with that subsection.

I understand entirely why amendment No. 98 was made. The period referred to in subsection (2) is 12 months from the date on which the new section 16 provisions will be commenced. The difficulty is that the manner in which the provision is currently worded may not assist the University of Limerick. It will end up having to select a governing authority for a very short period with a new governing authority being selected a few months later. In essence, if section 16 is not commenced before the term of the current governing authority expires, which is 30 November, then the provision will be of no use at all to the University of Limerick. This is because the governing authority's term will have already expired by the effluxion of time before the section is commenced.

It is a simple question for the Minister. The preferred scenario is that it would be open to the University of Limerick to make an application for an extension of the governing authority from the date of the Bill's enactment, as opposed to from the date of commencement of the provisions referred to in the amendment. It is an important issue for the University of Limerick. I needed to raise it today.

Senator Rónán Mullen

Cuirim fáilte roimh an Aire. My colleague, Senator McDowell, has already adverted to the strange situation where we get five minutes in which to make Second Stage contributions in respect of a Bill of this importance. It is in keeping with a pattern in recent years of less and less respect for the deliberative process in these Houses, in particular the Seanad. I regret that. I listened with interest to the Minister's speech. He galloped through it but, thankfully, with the help of a script, it was possible to follow. It strikes me that a very cursory approach is now being taken to the legislative process. That is a very unhealthy thing.

I welcome the Bill. It provides a legal basis for the functioning of An tÚdarás um Ard-Oideachas and the role of the Minister. He mentioned the significance of this legislation 50 years on. We are told in the briefing that the purpose of the legislation is to reform the legislative framework for the higher education system "enabling improved policy development and planning in the sector, a focus on the needs of the learner ... and ... oversight and regulation of higher education institutions." I wish that the relative independence of institutions in the sector would be upheld. I see new detailed structures for their new governance structures, which is fine, yet it appears there is a real danger of micromanagement of their activities by the State. There will be amendments on Committee Stage. I hope they will be fully supported, starting with the six university Senators who will, naturally enough, have a particular interest in this legislation. I expect and hope for support across the House for what will, in effect, be amendments that seek to guarantee and copper-fasten good governance.

From my contact with the universities in recent months, it is clear they are very conscious of good governance locally within their university structures. However, they believe that some of the measures in this Bill as it stands cut across respect for the good governance that can be done locally. In this day and age, much is said in our society about the principle of subsidiarity but there is real reason to be concerned about the excessive power being given to the CEO of the HEA under this legislation to take remedial action in issues as important as the funding of universities without, in many cases, recourse to or support from the board of an t-údarás. The universities believe that if we are to be judged in our governance, we ought to be judged having regard to the question of whether there is support from the board of the HEA for the actions of the CEO.

I know the Minister has listened, but it is clear the question is has he listened enough. Certain amendments have been taken on board, for example, regarding the power of the CEO to take action without reference to the board. I was struck by the thin nature of the justifications on offer for allowing this strange situation to endure, especially in matters as important as funding. It seems recourse to the board must be had in more minor matters, one might say, for example, where there might be a need to retrain somebody or some such issue. When it comes to issues as serious as the funding of universities, a fortiori, there should be a requirement for the CEO to have the support of the board before taking action and not to act unilaterally.

The explanations on offer as to why the Government is satisfied with things as they stand so far, and that the Attorney General, for example, has looked at this and is happy, makes me wonder what that means. Does it mean he thinks it is constitutional or that he likes the cut of the jib of the legislation? This kind of vague rationale is simply not enough when we are talking about the extensive powers being given to the CEO of the HEA in a way that cuts across the institutions. The health of our society needs to have a measure of autonomy, not least a measure of significant autonomy. We are not talking about a lack of accountability. The universities want to be accountable but good governance means good governance and that there is always oversight of those who have considerable powers.

That is why there will need to be amendments that insist on the requirement that the CEO of the HEA goes to the board in order to be able to take significant action. Given that we can have incorporeal meetings and meetings by Zoom, it is not impossible in this day and age to arrange meetings very quickly to deal with serious matters, such as funding, where an immediate overnight decision will not be taken anyway. With respect, the Minister and his Department need to listen more to the concerns of the universities on that.

As the Minister is aware, the universities continue to have concerns about the requirement to comply with codes, guidelines and policies. It is an established tradition and feature of university life that there is either compliance or an explanation for non-compliance. The Minister said that, overall, that is still there in the architecture of things. Where is it? The universities certainly do not feel that it is there. I will conclude by commenting on the issue of the appeals committee. It seems to be a no-brainer that the composition of the appeals committee should include an independent, external, international figure. It is also no-brainer that public servants should not sit on an appeals committee. What we are looking for here is independent adjudication of whether decisions are properly taken. Those are among the matters that I and others hope to return to on Committee Stage.

Senator Gerard P. Craughwell

I rise to address the Minister as one of his biggest fans when it comes to further education. I came through the further education system. It opened many doors for me and my colleagues. Indeed, some of my colleagues who went through Limerick Senior College in the early 1990s went on to become CEOs of some of the largest corporations in the world and finished up studying in institutions like the Massachusetts Institute of Technology, Harvard University and Princeton University. None of them would have got a place in a higher education institute with their leaving certificate results. I am 100% behind the Minister on further education.

Today, I am going to ask the Minister to pause the process. We are moving a little bit too fast here. I am aware the Minister said that there was a consultation process. However, in respect of consultations undertaken in the last few years, the world has moved on since last year, and even further from two years ago. That is particularly the case with Trinity College Dublin. Right now there is a very delicate situation in Northern Ireland. Boris Johnson and his Government are currently ramming through legislation on the Northern Ireland protocol. It has been hailed by one side of the community in Northern Ireland as the motherland defending the rights of the citizen in Northern Ireland. On the other side of the community, it has been regarded as the British Government reneging on a deal that it already agreed to. We have rightly pointed out that the legislation, which is currently passing through the House of Commons, is unnecessary, unwise and probably in breach of international law. In this Bill, particularly in relation to Trinity College Dublin, we are handing one side of the community a stick to beat us with, insofar as we are taking away the autonomy of Trinity College Dublin. I recall that back in the days when I was president of the Teachers Union of Ireland, TUI, we were moving towards the establishment of the technical universities. At that time, I could see the HEA casting its eye over the established National Colleges of Ireland, Trinity College Dublin, Dublin City University and University of Limerick, and thinking it needed to get its hands on that lot as well. Looking at what the institutions have achieved on their own without Government interference, Trinity College Dublin, University College Dublin, National University of Ireland Galway, University College Cork and Maynooth University are recognised all over the world as institutions of excellence.

Two words were used by my colleagues earlier. One was "control" and the other was "competition". I think that competition is healthy. It drives innovation within universities. The freedom and flexibility to move when various things happen within the world economy is what it is all about. Successful universities are able to react immediately. On control, the control should come from the local governing body, not from central Government. There is too much of a drive to drag everything into a central organisation which controls every last move universities make. I wonder how quickly they will be able to react if they are being controlled at every single level. Are we going to kill innovation, and the ability of our universities to raise money either through the corporate sector or attracting students to study in Ireland? It is fantastic that international students come here. The flexibility that our third level institutions have had over the years to attract foreign students is commendable. Looking at Finland, universities in Finland are independent. They receive 64% of their funding from the state. They do not need a higher education authority looking over their shoulder. My own university, the London School of Economics, is an independent university. It does not have anyone looking over its shoulder. I am a little concerned. I have no difficulty with the Minister legislating for the technological universities, which are new entities in this country and have yet to prove themselves. However, I have some difficulty with the Minister stepping into the area that he stepping into with the National Universities of Ireland and Trinity College Dublin. I would also include in that Dublin City University and University of Limerick, both of which are extremely innovative and would match any of the National Universities of Ireland and Trinity College Dublin, in my view. I am concerned. I have heard from various people who are involved in universities around the country that they are going to meet next week to discuss this Bill. If they are telling me that, then there is something terribly wrong here. We have been told that there has been extensive consultation. However, I am being told that the universities are meeting next week to discuss the Bill. If that is the case, we need to take a step back and give the institutions an opportunity to discuss the matter. There is not a lot one can say here in five minutes or eight minutes. Even when the Minister had 15 minutes to speak, he did not finish all his points. If the Minister is not willing to pause the legislative process, we will have to bring forward amendments. I sincerely hope that we do not go down the silly route of guillotining the Bill at some stage before the end of the session. We can always come back to it in September.

Minister for Further and Higher Education, Research, Innovation and Science (Deputy Simon Harris)

I will not use my prepared script in the interests of trying to respond to a number of the very interesting and important issues that were raised. I am glad to be back in Seanad Éireann. Unlike in the other House, I am not a Member here. The Seanad orders its business as the Members wish to order its business. I am here to genuinely engage in good faith. We genuinely engaged on the issue in the Dáil. We did not just come in and use our Dáil majority to say, "Thanks very much, good night and good luck." We brought forward 179 amendments. While they were all brought forward in my name, bar one, many of them arose from opposition contributions and engagement with the Union of Students in Ireland, USI, the Irish Universities Association, IUA, and the Technological Higher Education Institution, THEA. Deputy Ó Snodaigh brought forward quite a few amendments on behalf of Conradh na Gaeilge. We also had very extensive engagement with Deputy Ó Cathasaigh, as I mentioned earlier. I am here to engage in good faith. It will take the time that it takes, and we will work our way through it. I would not be so rude, as a Member of the Lower House, to try to tell the Upper House how to do its business.

At the outset, I wish to state that what we are trying to do in this Bill is to ensure that there is good, robust, modern internal governance in the institutions, which absolutely respects their autonomy. This legislation sets out the importance of autonomy and academic freedom. There is no threat to either, whether legal, policy-wise, implicit or explicit. We took steps in the Dáil, which I am sure we will be able to tease through on Committee and Report Stages, to further strengthen the importance of autonomy. I really value having autonomous institutions. They are a cornerstone of our western democracy. However, we also need to know that there are good, internal, robust governance structures in place. That is what we are trying to achieve with this legislation. We can have the debate about whether we have got the balance right and how to improve it. Let us do that, as we did in the other House. However, let us not suggest that we are setting out to do something that we are not setting out to do. I am not saying that it has been overly suggested here, but I have read about such suggestions. We are not setting out to do anything to undermine academic freedom or autonomy. I would never do that. I do not believe anybody in a democracy would so such a thing. I agree with Senator Mullen that we value the role of our universities. I agree with Senators O'Reilly and Byrne on democratisation, free thinking and independence. I wish to make that point at the outset.

Senators Byrne and Hoey will be pleased to note that in many ways, this legislation is setting out in law what is already done in practice.

There are many excellent areas in which the HEA is proactively involved but it does so on a good-faith basis that is not set out in legislation. It makes sense to clarify in law what the HEA is when a Bill is being brought forward that defines its role, including its functions, its objects, the role of the Minister in the new Department and what that does and how it interacts. I was taken by Senator Hoey's point, and I want to fully agree with it on the record, that the HEA is not just a funding distribution office that hands out cheques for the year. It does a lot more than that and it does a lot of really valuable work. I just came from the launch of the zero-tolerance strategy on sexual violence and I would like to single out Dr. Ross Woods and the HEA for the incredible work being done in getting our sector to the place we want to be at in leading a zero-tolerance approach. I use that as one example.

There has already been a good debate on CEO versus board in the HEA and on the balance of that division. I want to be truthful and clear that we will turn to this in a lot of detail on Committee Stage. We have to be careful not to just read parts of the Bill in isolation. The Senators are all experienced legislators, including having a former Attorney General in the House, and the importance of reading the Bill in the round is genuine because it is not just about picking sections. The CEO has to operate within the law and the framework, and there is an entire section in the Bill that sets out the functions of the CEO. The CEO is accountable to the board in all of his or her decisions. Would we be asking the CEO of the HSE to revert to the board of the HSE on every matter or would we accept that the CEO of the HSE runs the HSE but is accountable to the board? We need to have honest and detailed consideration of the role of a board versus the day-to-day role of an executive and the different functions they possess, including the different functions of a full-time professional versus an expert competency-based board that has a different role.

The legislation is clear that the first step, which we worked on in the other House, is that if there is an issue of significant concern - and that phrase and threshold were put in deliberately - the first step is for the CEO of the HEA to ask the HEI to undertake a self-review. It is not just a case of jumping right in and withdrawing funding; that is genuinely not what the Bill is trying to do and we can tease that through. The HEI can rectify any issue at that stage before we get anywhere near the CEO making any determination.

As I have said already, the CEO can only operate in the framework and in compliance with the Bill. In discussing the balance, which is a legitimate debate that we had and we made some changes in the other House, we need to look at that specific section in the Bill on the functioning of the CEO. We also need to remember that the CEO is accountable to the board at all times in the performance of his or her functions. The CEO has to provide members of the board with information, including financial information. A board, in doing its job, would be holding the CEO to account. Five of the six remedial measures which require CEO approval are funding-related and the CEO of the HEA is the Accounting Officer for the HEA. It is also the CEO who is accountable to the Committee of Public Accounts. When it comes to the Oireachtas discharging its function it is not the board that is accountable to the Committee of Public Accounts and it is not a chair or member of the board; it is the CEO of the board. Can the CEO be accountable without having the ability to make those decisions and without that power? That is a legitimate question that we should discuss and consider.

I want to talk about Trinity College Dublin and I want to thank Senator Norris for his kind words. I got dizzy by the end of his contribution but I have the utmost respect for the Senator, who has served this House and country with distinction. I always like that Senator Norris can disagree without being disagreeable. He made an important point about funding and I said in my opening comments that this Bill cannot be read in isolation from the other pieces of the jigsaw that we are trying to put together on third level education, the most crucial of which is the Funding the Future framework on sustainably funding higher education. That has been welcomed by every higher education institution, every president of every university, every chair of every governing authority and probably every party in the Dáil. The issue now is to get on and deliver it, and I accept that. Funding is important and it cannot be looked at in isolation.

On Trinity College Dublin, there is an idea that I got some mad notion and went off on one because of the monarch and all this stuff that was being quoted at me. We wish the British Queen well during her jubilee year but I am not in any way accountable to any monarch, nor is this House. The Constitution of Ireland and the Oireachtas are sovereign and there are many better historians than me in this House, but one does not need to be a historian to recognise that, so we will not get far in discussions on the monarch. Perhaps that only gives an indication of a throwback to a different era rather than a liberal and outward-looking democratic republic with a parliamentary democracy, and Trinity College Dublin is on this journey. I welcome former Senator Barrett and I know he fully disagrees with me on this Bill. I still fundamentally respect him while disagreeing on that but I welcome him back to the House.

Trinity College Dublin completed its governance review and it identified the benefit of additional external membership, not me. Trinity College Dublin envisaged in the review that 40% of its governing authority should be external. That was not me but Trinity College Dublin and this is consistent with the provisions in the Bill which provide that not less than 40% of Trinity College Dublin's board should be made up of external members. I heard from Trinity College Dublin Students' Union about changes to the composition and about giving the students more voice. I want to praise Leah Keogh of the Trinity College Dublin Students' Union and we acted on that. We also heard from the Union of Students in Ireland, USI, more broadly and we acted on that.

Senator Flynn asked for an explanation on why Trinity College Dublin is being treated differently. I am treating it differently in recognition of the legal difference and the fellow structure and I am allowing Trinity College Dublin to have six fellows, as no other college or university in Ireland can. We should bring a bit of balance to this debate and recognise that it is fundamentally, totally and absolutely wrong that the CEO of any organisation is the chair of the board, which is the situation in Trinity College Dublin. Trinity College Dublin is autonomous, independent and brilliant and we love it. We think it is great and we are working with it but this place is sovereign, it will do its job and we will work with Trinity College Dublin. I thank the college for the work it has done, including the work it has done with visitors, and I thank it for the co-operative and engaging way it has worked with us on this.

I also want to return to the issue of comply and explain because a good point came up. Am I OK to continue?

Acting Chairperson (Senator Sharon Keogan)

Continue.

Deputy Simon Harris

I am just going through the thematic issues. Senator Hoey and a number of other Senators brought up the issue of guidelines; that the guideline has to be done and if that is not done one might be in trouble with the HEA. This also needs to be seen both in law and in context. The policy intent is compliance and I accept Senator Mullen's challenge to show that and to talk through it because he suggests that the sector has concerns about this. I hear that as well so I am happy to do that on Committee Stage and we will have a chance to tease it through.

This is about co-design and the HEIs themselves are consulted on the preparation of guidelines by the HEA and they can indicate any issues of compliance at that stage. One of these guidelines is about environmental sustainability and one will be about sexual harassment. We have an issue if public institutions are not implementing guidelines. These are not in the space of academic freedom, and I am sure the Senator will want to stress-test me on that and make sure that is the case but this is not a case of the Minister of the day saying this course should be provided or that course should not be provided or to teach a course in a particular way. This is about public policy and we are not interfering or intruding; we have every right to be in that space. If somebody else wishes to be in that space he or she should run for the Oireachtas and get elected because we have a democratic mandate and I will not apologise for developing an education system where the HEA, which is not just a funding body, will bring forward guidelines to make sure our sector leads when it comes to environmental sustainability, gender equality and access and inclusion.

In Senator Flynn’s absence I want to say I am taken by the point she made on universal design. We might need to explicitly state that in the legislation or we might be able to give an assurance around guidelines. I would like to return to that on Committee Stage also. I suggest that perhaps I can provide useful briefing and engagement on comply or explain guidelines and where we are. I am sure we can tease that through a little bit more.

I also want to mention the National College of Ireland, NCI, which Senator Malcolm Byrne mentioned, and I welcome Dr. Deirdre Giblin to the House. The answer to the Senator's question is that this legislation sets out a pathway for a designation. The National College of Ireland is playing an incredible role in our higher education landscape and if "unique" is not the right word it is pretty close to it and it is playing a special and particular role. We have had good meetings on this and this gives us an ability we do not really have at the moment in providing a pathway to designation. I discussed this with NCI and while this is not explicitly designating NCI - and I went through the reasons with it - it is providing a pathway that has not existed to date for it and for others.

We have had a good engagement. Senator Ó Donnghaile asked me if the number on the board is too rigid and that is a fair point. The number is arbitrary and there are no two ways about it. There is no reason 17 is better than 13, 15 or 19 but someone has to pick a number. We started wanting 12, we went to 17 and we are now at 19 because of the increased student voice and the knock-on effect on external members. The numbers 12, 17 and 19 have not shown huge rigidity.

I will come back to Senator Gavan on the UL governing authority and I note the point and the importance of it.

I agree with colleagues. Education is a public good. As Senator Pauline O'Reilly said, education as a public good lies at the core of the Bill. That is why we are trying to pass what is a good Bill. We are trying to pass a Bill that is flexible and future-proofed. We are trying to provide a Bill that respects autonomy and academic freedom but also the role of the HEA, the Department and the Minister of the day and getting that balance right. I have no doubt that this House will tease those matters out with us at whatever speed it wishes. I look forward to that.

Question put and agreed to.

Cuireadh an Seanad ar fionraí ar 7.41 p.m. agus cuireadh tús leis arís ar 7.50 p.m.

Sitting suspended at 7.41 p.m. and resumed at 7.50 p.m.

Seanad Éireann debate - Tuesday, 28 Jun 2022

Higher Education Authority Bill 2022: Second Stage

Seanad Éireann debate -
Tuesday, 28 Jun 2022