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Dáil Éireann debate -
Wednesday, 2 Aug 1961

Vol. 191 No. 14

Statute LIV (University College, Dublin)—Motion to Disallow.

I move:

That Statute LIV (University College, Dublin), as laid before both houses of the Oireachtas on 19th July, 1961, be disallowed.

It was provided in the Order of Business to-day that one hour would be given for the discussion on this motion. I suggest that Deputies would regulate their speeches accordingly.

I do not think that is covered by the Standing Orders.

It was agreed that the time allowed would be one hour.

It is very hard to expect Deputies——

I cannot change the Order of Business. I am reminding Deputies that they should regulate their speeches to give all who wish to speak an opportunity to do so.

I want to make it quite clear at the outset that since we opposed a similar measure in 1960 we do not wish to create the impression that we believe there should be interference in the internal affairs of University College, Dublin, merely for the sake of interference. We are only concerned with drawing the attention of the House to what we believe are improprieties contained in this Statute. Under the 1908 Universities Act, the Statute is laid on the Table of the House and it lies there 40 days as provided under Section 5 (2) of the Act. We wish to draw attention to the provisions of that statute and to what we consider are certain improprieties.

The Statute lays down that certain College lectureships and assistant lectureships shall be established in the college in the event of there being dissent. The 1960 Act alters the provision in relation to the conditions of employment of lecturers, assistant lecturers and professors and alters the conditions of the President in certain respects. While certain of the provisions appear to us in themselves to be objectionable—I shall deal with them as briefly as possible—our main objection lies in the fact that if we accept this Statute we are acting in violation of the Charter of the University. The provisions themselves—the establishment of certain posts—appear to be a matter entirely for the University.

I do not think there can be any quarrel with those decisions because it is a matter for the University and it appears, as I say, to flow out of the provisions of the 1960 Act in certain respects, that is, either to appoint members to vacant posts or to discontinue certain posts as they must do in accordance with the statute and as they had not been doing up to 1960.

The main objection arises from the fact that the Senate does not appear, as far as we are aware, to have ratified the decisions already taken by the Governing Body in this statute. I might explain to the House that the Senate is the co-ordinating body for the universities. It is the lynchpin of the whole idea of federation of the universities. It is the superior body, the body which is responsible for the establishment and institution of these posts and for the final alteration of the conditions of service of persons appointed to these posts. We are being asked to consider this statute in anticipation of the decision of the Senate and if we do that, we believe we are acting improperly and in violation of the Charter of the University.

Briefly, in respect of the provisions with which we are actually concerned, altering the age limit of the President under Chapter III appears to us to be undesirable. We believe that, in effect, it alters the age limit of the President in so far as it says that notwithstanding the provisions of Chapter IV of Statute I of University College, Dublin, the President may, at his option retire on pension after attaining the age of 65 years on giving three months' notice in writing to the Governing Body provided he has been in office as President for not less than 10 years.

There are many arguments as to why there should be age limits. We have accepted them in respect of the judiciary and the Civil Service and even in respect of politicians in so far as they must be ratified from time to time by the people who put them into office. Generally speaking, the age limit idea is accepted but this appears to set aside age limits in respect of the president of the University. Even if we were to leave out of consideration the debatable qualifications of this particular President and the fact that there have been many incidents in the College which, to many people, do not suggest that he is the most desirable President, we believe there should be an age limit.

The fact that in Chapter III we have no age limit for the President and Chapter IV lays down a specific age limit for professors shows inconsistency which, to put it at its mildest, is incomprehensible. We think the suggestion in Chapter IV is correct, that there should be an age limit for employees of the University whether Presidents, Professors or lecturers and that the general principle accepted by all other classes of society should be carried out in relation to the President.

There are certain considerations altering the whole question of superannuation benefits which are not of very great importance but there is another change which I think is of considerable importance and that is an alteration in the conditions of appointment of assistant lecturers, lecturers and professors. Assistant lecturers and lecturers are to be reappointed at yearly intervals. We think this is an undesirable alteration of the present system whereby lecturers are reappointed at seven-yearly intervals.

There is also a most important change in that professors will be reappointed at regular intervals, every five years, instead of the present position where they are appointed up to the age of 65 and thereafter are reappointed at yearly intervals for a further period of five years at the discretion of the appointing authority. We believe that the year-to-year basis and the periodic reassessment of the qualifications of lecturers and professors within a relatively short time is most undesirable, that it could lead to diminution of academic freedom if they felt they were to be subject to review each year or five years and that their opinions or ideas might in this way be effectively censored. It could lead to a diminution of democratic and academic freedom in the University and it is an undesirable power to confer on any body within the University. It is important that there should be security of tenure of appointment and that holders of these appointments should not be subject to dismissal at the whim of any individual.

The sequence of events in the production of this statute appears to be this: the Governing Body met on the 29th of June and passed this Statute, which was then sent to the Senate. The Senate met on the 13th July and gave the Statute a first reading but I understand made it clear that they considered these changes to which I have referred, particularly the changes of periodical review, were of very great importance and significance and that they should not be lightly made without much more mature consideration particularly on the part of the Senate. They suggested a further discussion of the whole question should take place at the next meeting of the Senate which, I understand, will not be until the 23rd October. That means, as far as we can find out, that this measure has not yet got the approval of the Senate. If it does get that approval it changes the whole complexion of the matter. We can withhold our approval of anything contained in the statute but it gives us here the satisfaction of knowing that the provision of the Charter has been honoured and that we are not acting, as we believe, in violation of, or in anticipation of, the decision of Senate.

The next happening was on the 14th of July. A special meeting of the Governing Body was convened to advertise posts. Incidentally—this is a small side-issue, I suppose, but it is important in some ways—the decision was taken to advertise these posts in two out of three national papers— perhaps the Cork Examiner was included—but the "Independent" and the "Irish Press", I understand, were favoured with the advertisement but the "Irish Times" was not so favoured. I may be wrong in that, but I should like the Minister to reassure me. We accept it as a general principle that there shall not be any vindictive act on the part of a political Party against a newspaper hostile to them. It is a general principle followed by both sides of the House and followed by all Parties. I think most of us would approve of it. However, the important thing is that it was apparently decided by the governing body to go ahead with the making of these appointments, with all the consequent important repercussions, without having got the consent of the Dáil, first, and second, without having got the approval of the Senate. I suppose that the latter is very much more important if we are to consider the Charter of the University. As the Statute repeats on many occasions, "the appointments shall be made in the event of their institution by the Senate." These appointments have been advertised but they have not yet, as far as I know, been properly instituted by the Senate.

We think that is wrong and that it is a misuse of public funds. In view of the fact that there was a possibility that we might not approve of the Statute and also in view of the serious attitude taken by the members of the Senate at the time the matter was given its First Reading, there was a possibility the Senate might not approve of these appointments. In which case it seems to us to be wrong and to be a rather impertinent anticipation of our decision, in the first place, and of the Senate's decision, in the second place.

The other point in relation to these advertisements is a point referred to on the Universities Act of 1960, a matter that had to be rectified, and that is that there is advertisement in respect of only some of the posts—not all the posts were advertised. We feel that all the posts should be advertised when the posts have been properly established and instituted by the Senate in accordance with the Charter.

We believe if this general practice is accepted, it can have a number of serious repercussions. First, there is the possibility that if the Senate, which is the co-ordinating body for the federal system on which the Universities are based, is to be treated with what I believe effectively to be contempt, as it has been or appears to have been treated in this case, it can lead to the break up of the whole federal system. The function of the Senate becomes purely a nominal one and its powers are purely nominal. This reference, "in the event of their institution by the Senate," is merely lip service to the true powers of the Senate. In that way, it seems to me the Senate must eventually accept that, so far as University College, Dublin, is concerned, it does not have any real functions. It seems to me it could lead to the breaking up of the present and, I understand, desirable, federal system under which the three Universities are controlled.

There is one final point. It concerns a matter which, it seems to us, should be put to the Attorney-General. It arises out of a phrase in the Universities Act, 1908. "If either House of Parliament within 40 days exclusive of any period of prorogation..." As far as I know, we do not have in our Constitution this system of prorogation— the suspension of Parliament at the end of a session. Since there is no period of prorogation, the 40 days during which the Statute lies on the Table of the House cannot in Ireland contain this period of prorogued Parliament.

I should like to know from the Minister whether he has given consideration to this point and whether, in so far as the period of propogation cannot be included in the 40 days, this Statute would be legal were it to lie on the Table of the House for 40 days. That is the generally accepted view. But it seems to me there is a possibility in the absence of this idea of prorogation that the Statute is not a legal and valid Statute, even after it is laid on the Table of the House for 40 days. It is possible that the whole legality of the Statute could be questioned in the courts.

In sum, then, I suggest to the Minister that if we accept the passing of this Statute without question, and accepting that this is not a valid point in regard to prorogation—although I should like the Minister to consider it —and it lies on the Table of the House for 40 days, we are violating the Charter of the University in so far as we have not yet got the final decision of the Senate of the University concerning the making of these appointments, the conditions of appointment of the assistant lecturers, lecturers and professors, whether they are in agreement with this idea of the period of reassessment—a very important alteration in the existing conditions of service of the University appointments— whether they approve of this age limit in respect of certain employees of the University and whether they approve of the prospect, which would strike many people with consternation, of an octogenarian Professor Tierney still controlling the University in a very important period of its existence, that is, the great expansion and building projects which are envisaged for the improvement of the amenities of the University.

We face the possibility of passing a Statute here which, when its provisions are considered by the Senate in October, may be altered or rejected in part or in their entirety. We may then be faced with the prospect of retracing our steps and reconsidering our legislation or of being quite rightly told by the Senate that we have no right to anticipate their decision. Whatever may be the attitude of the President of the University to the rule of law as laid down in the Charter, I believe we, as the law makers, cannot treat the Charter with that same contempt.

I second the motion.

In regard to Chapter 3 of the Statute now before the House, I should like to point out, simply for the record, that there is a reference in the opening paragraph "notwithstanding the provisions of Chapter 4 of Statute 1 of University College, Dublin..." Statute 1 is not available to any Deputy, and the earliest available record in the Library is that of the Statutes from Statute 8 onwards. Statute I was made far earlier than 1922, and I understand that is the reason it is not available. It is a pity when documents are referred to here that these Statutes are not available to us.

I would not subscribe in any way to the provision whereby the President may, at his option, retire at any time after he shall have attained the age of 65. Why they should bother to put in writing that the President of the University should communicate with the governing body, together with the proviso that he shall have been in office for not less than ten years, is something I cannot understand. The interpretation of the clause that he shall have been in office for not less than ten years is something I should like to have some light on. Can the President not be appointed and gain some benefit from this section if he is 55 years of age? Are we to take it that the President is appointed at 60 years of age and, being so appointed, has then to wait before he starts thinking of sending in his resignation in writing to the governing body? He will have to wait until he is 70. That is a most stupid clause. It is one of the most stupid that has ever come before this House and it emanates from people who are charged with educating the youth of this country. If a President is appointed at 64 years of age he cannot qualify, if we bring this to its logical conclusion, for this new improved pension unless he is President for ten years. He will then have to give three months notice in writing to the governing body and he will, therefore, have to wait until he is 74.

Having exposed that piece of crass stupidity I shall go on now to Section 2 of Chapter 3. This will set a most extraordinary precedent. It may create a most extraordinary position if the higher civil servants get hold of it. It states that the President will be entitled to reckon as years of service for the purpose of pension and gratuity his years of service as professor or lecturer in the college, in addition to his years of service as President, together with such added years as may be accounted according to the provisions of any statute of University College, Dublin. It appears to me that under this provision the President will go out of office with a pension as high as the full salary he received as President. The word "pension" seems to me to be quite superfluous. He will lose nothing by retiring. That might be a good thing. It might encourage people to retire earlier. "His years of service as professor or lecturer in the college". Surely there is room for injustice there. A very prominent professor in U.C.G. would not have his years of service as a professor, or lecturer, in a constituent college taken into consideration. That would be a grave injustice. It states specifically "the years of service as professor or lecturer in the college".

The college is University College, Dublin, a constituent college of the National University of Ireland. I do not know what say, if any, the Senate of National University has in this matter. I should like to recall to the House that when the late Monsignor Padraig de Brún was President of Galway University and retired from that college he was cut off completely by that noble, considerate and charitable body—the governing body of University College, Galway, without one penny for all the years of wonderful service he had rendered to that college. Nemesis took revenge on those people for that injustice in due course. I think one of the objects at the back of Deputy Dr. Browne's mind is to have a crack at U.C.D.

That is not so.

I accept the denial. I want to have a crack at them. The whole set-up, generally speaking, in University College, Dublin, is in very grave need of revision. Perhaps when the Fine Gael junta which runs U.C.D. at the moment is changed—not, of course, to a Fianna Fáil junta—to a governing body of able men appointed on merit and qualification there may be some improvement. The Minister told us that the terms of reference of this commission enable that body to make recommendations for changes in the charter. Until that is done nobody can alter the position. The Minister and the Government do not have to wait until they get recommendations from this commission, but it is logical to presume that they will wait. I presume Deputy Dr. Browne dealt with Chapter 2 and recalled the reason why this House is now presented with Chapter 2 which deals with the abolition of vacant statutory offices. We know a conscientious citizen succeeded in having a Board of Visitors appointed and that Board of Visitors discovered these irregularities. Chapter 2 is introduced now at this late date— it is an extraordinarily late date—to abolish the vacant statutory offices, which the Board declared should have been filled. It is unfortunate that this measure should come before us on the last sitting day of this Dáil. That is not the fault of the Minister, the Government, or the Opposition, but it is a remarkable coincidence.

I gave the Government's attitude towards the University last year. In particular, we should like to see the autonomy of the University preserved and, at the same time, the responsibility for the management of the University placed squarely where it belongs on the governing body—that is the governing body of each college— and the Senate of the National University of Ireland. As far as I can see this statute is in order.

Has that statute been approved of by the Senate of the National University?

The machinery for the control or management of the college by statute is such that the statute must be initiated by the college concerned. That is why the statute making an appointment always has the phrase that "subject to institution by the Senate of the university" certain posts shall be created. The initiative is always with the college to produce the statute. Having produced this statute it must lie on the Table of the House and, as the House knows, it can within 40 days be annulled by a prayer of the House to the Government. It cannot be effective in regard to appointments until the Senate of the National University institute these posts. Therefore no appointments could validly be made to these posts until they have been instituted in the University by the Senate of the University.

Why have the posts been advertised?

I should like to give a clear picture of what may validly be done, if the Deputy would not mind. It is clear from Chapter I that these college lectureships and assistant lectureships are posts which can be established under the 1960 Act subject to their institution by the Senate of the University, but the Senate of the University cannot take the initiative. The initiative is taken by the college. As the House may remember when we were discussing this matter before, it is clear from the Charter that a college can deal in two ways with a vacant office. It can fill the office by having the Senate make the appointment to the office or it can extinguish the office. That is what Chapter II of this statute is doing, extinguishing certain offices which have been vacant for some time.

I understand Chapter III to mean not any extension of the age for the President but a shortening of the time, permitting him to retire at 65. Statute 1 lays down that he should retire at 70. Chapter IV of statute 1 says among other things that the President "shall hold office until he shall have attained the age of 70 years and on the occurrence of a vacancy the Senate shall appoint the President of the college." All I see Chapter III doing is making it possible for the President to retire before the age of 70, at 65.

That is a power which the Presidents of the other two colleges have.

I did not know that.

They may retire at 65 if they like.

At any time.

But there is an upper limit there of 70. I do not think that is touched by the new Chapter of the Statute. The upper limit of 70 still exists but it is made possible for the President to retire at 65.

Seventy is the upper limit.

Mr. Gilligan

That is still there but the Presidents of the other two colleges may retire at 65.

That is not my interpretation of the Act. Another question is the establishment of other posts which again have to be instituted by the Senate. The placing of the responsibility with the Senate of the institution of these posts is the proper placing of responsibility in university management. I do not think there were any other points raised. I am satisfied this statute is in accordance with the law.

With the 1960 Act?

In accordance with the total law, including the 1960 Act. I find no objection to the whole statute.

The Minister concedes that the Senate has not considered the provisions of this statute. Under the charter, the Senate is the supreme body and must make the final decision. The governing body send these propositions to the Senate and the Senate considers them, and accepts, amends or rejects them. We are acting as the governing body has acted if we accept this statute. We are acting in anticipation of that decision and there can be no controversion of that simple point. Why should we act in anticipation of the decision of the Senate? These are not valid appointments; these are not valid provisions until they have been passed by the Senate.

Would the Deputy allow me to explain that the Senate statute will come before this House. This House is the final judge on this statute. If the Senate institutes these things by statute, it will be laid on the Table of the House.

That is very desirable. It is a consolation to know we shall have an opportunity of discussing this again. However, I must draw the Minister's attention to the fact that the governing body appears to have acted in anticipation of a decision of this House and of the Senate in advertising the posts. A number of people will go through the very formidable and costly process of applying for appointments, a process so cumbersome and so costly that a commission has been established by the House to investigate how it can be streamlined. A number of people will go through this process possibly quite unnecesarily in so far as these posts may not be instituted by the Senate.

Surely the Minister could express his disapprobation of the decision of the governing body who acted in this way and in fact violated the charter of the University in so far as they have not waited for the decision of the Senate on the appointments which they have advertised and which they will proceed to make. We know they will proceed to make the appointments they have advertised; otherwise they would hardly have spent public money on the advertisements. We do not know whether they will make the other appointments and not advertise them. It may be that they intend to do that as well.

Has the Minister any assurance from the university that they will not go ahead with these appointments before they are ratified by the Senate? If they are not going ahead with these appointments before they are ratified, why have they gone ahead with the advertisements which may be invalidated by a reversal of these decisions by the Senate? The Minister has not answered that point.

Now on the question raised concerning the legality of this statute when it is laid on the table of the House, it is stated in Chapter V of the 1908 Act, subsection (2), that a statute becomes law if it is laid on the Table of the House for 40 days, excluding the days in which the Parliament is prorogued. We do not prorogue Parliament, so those days cannot be included in the 40 days; consequently surely the whole legality of this statute must be questioned and surely this House should take cognisance of that fact.

Surely we should have the opinion of the Attorney General on that matter? We should not proceed to make a decision of this kind, subjecting ourselves to the opprobrium involved in going ahead to validate a statute which could be declared to be illegal. It is a most important point which I think should be cleared up by the Minister.

I find it difficult to accept this question of the retirement at the age of 70. I feel that this could be clarified in Chapter 3—this question of the President being able to retire on pension at any time. "At any time" is at any time; it is not at 70, 69 or 68. It is at any time after he "shall have reached the age of 65." To my simple mind, that appears to be perfectly clear and I feel that if there is a governing clause in another statute that he must retire at 70, we should have that matter clarified to everyone's satisfaction and relief.

I think also that Deputy O'Malley raised an important point concerning the 65 years—a person who might be appointed and find himself having to wait on until 74 before he could retire. In Chapter 2, there is one point which I did not refer to and to which I should like, in passing, to refer, that is, as I think all probably disagree with, the abolition of vacant statutory offices. The fact that it is proposed to abolish the Professorship of the Theory and Practice of Education would appear to me to be a backward step in a university.

I do not think there is any doubt in spite of what the Minister has said that we should not pass this statute, that it should be sent back to the Governing Body to be clarified on the points that we have raised here and that the matter should then be reconsidered. If the provisions are acceptable to the Senate of the university then it is quite another matter but as it is at the moment we are in danger of giving sanction to the improper decisions of the Governing Body. We are leaving the Senate open to the suggestion that these provisions have been considered by the Dáil and accepted by the Dáil and that consequently certain pressure would be brought on the Senate to accept these provisions as they have the sanction of the law of both Houses of the Oireachtas.

I think that the Senate should not be subjected to any pressure whatsoever and that the points that I have asked to be clarified and which I regret to say I do not think the Minister has clarified, should be cleared up. We have been faced here it seems to me with a fait accompli, that there is the possible legal disability contained in the clause of the 1908 Act and there is that serious doubt concerning the decision to change the age limit, and the very serious repercussions to which the Minister did not refer at all contained in the new provisions contained in the relatively short periodic reappraisal of the good conduct, as it is mentioned here in the statute of the lecturers, assistant lecturers and professors. It surprises me that the Minister does not express at this stage disapproval of that trend of the university to attempt to establish a sort of mind control by subtle, or not so subtle, pressure on the minds of the academic staff of the university, a most undesirable trend and one which we here should disapprove of.

The Minister must recall that what we have said on this Bill and his very few very short remarks on the Bill will carry some weight in the Senate and if they find that this House approves of the proposals in this statute it must weigh heavily, with some of them at any rate. We may be allowing ourselves to be used as an instrument to vitiate the powers of the Senate, to by-pass the powers of the Senate and to enforce decisions taken by the Governing Body contrary to the charter of the university. That as I suggested in an earlier speech would be an undesirable trend leading to the weakening of the federal system of the university.

I should like to ask a question. This statute says: "when laid on the Table of the House." If it is before the House for 40 days excluding any period of prorogation of Parliament and it is not objectionable, it automatically becomes law. Would the Minister explain how the word "prorogation" comes into effect when it is not specifically mentioned in any sense in the Constitution?

My advice is that the 40 days referred to was 40 days in the life of the Parliament and the prorogation does not arise. Any 40 consecutive days in the life of a Parliament.

It says any period exclusive of prorogation. What is the meaning of prorogation here?

If it does not occur you have to accept 40 days in the life of the Dáil. It would be the modern interpretation.

There is no legal precedent for the Minister's statement.

It is an interpretation of the section you want.

I want to know what the word "prorogation" means. What legal authority has he to use the word "prorogation" when according to him it has the same meaning here as it has in the British House of Commons?

Major de Valera

The pre-1922 statutes. It would depend on whatever the general intention is.

It is only a dictionary word.

Why cannot we get the advice of the Fine Gael Front Bench?

Is it putting the same interpretation on the word "prorogue" as was included in the 1908 Act in the British House of Commons?

The Deputy is making a speech by way of question.

He was not there when the 1908 Act was passed and does not know anything about it.

Surely he has advice?

No. It includes something that does not arise.

Surely when the word "prorogue" is mentioned in connection with this statute, which is based on the 1908 Act, the Minister should say whether the meaning of the word now in this House has the same meaning as it had when the British House of Parliament was controlling it?

The Deputy had better ask the House of Commons that.

It is gone with the King.

I am putting the motion.

The Deputy is making a speech by way of question. Time is running against him, I would remind him.

I have until five past seven—five minutes to go.

The Minister has already made a statement on the question of prorogation. I cannot allow the Deputy to make a speech by way of question.

I do not want to make a speech. I want an answer because it is a legal matter and it is only fair that there should be an answer given.

I am concerned with the interpretation of that section as it applies to the present. I told the Deputy what my advice is of that interpretation and he can play around with proroguing for the rest of his natural days.

The Minister is not going to get away with making a joke out of this.

Motion put and declared lost.