That is the long and the short of it. He made a point of pride of not having consulted anybody but it might have been not unfitting if he, at least, found advice available to him in his own Department. If there was advice available there, it was bad advice, but my feeling is that he got no advice in his own Department and there was no one there able to give him advice at the time. Whether the situation in the Department has changed since I cannot say. If we are now going to have an Authority which is in a position to advise, with knowledge and authority, we will be making some progress. Certainly, the record of the Department of Education and of the two predecessors of the present Minister in this regard is not at all encouraging. I shall return to the question of consultation with the universities later.
The weak spot in section 5 seems to be that no rule is contained in the section which requires the assent of the Authority before the an institution of higher education is created. I am prepared to assume, in favour of the present Minister, that he does not intend to set up bogus institutions. I am willing to assume that in the Minister's favour but, as I said last week, it is not enough to legislate on the basis that the goodwill that one may impute to, or assume to exist in, the present Minister will be there always. Ministers come and go and Governments come and go. It may easily happen that we will have a Minister or a Government in the future—I am not necessarily saying that it will be a Fianna Fáil Government that will do this evil deed—but we may have a Minister in the future who for some political reason, to satisfy local political pressure, to save a quota or a second quota, may give people, in response to academically and socially unjustified pressures, a so-called institution of higher education which cannot be objectively justified. I believe that section 5 is weak and that it should require the assent of the Authority before an institution of this kind is set up. I know this point was put to the Minister in the Dáil in a slightly different way and I realise that the Minister has had his attention directed to it but I hope to return to it, in the form of an amendment, at a later stage.
I do not propose to put down an amendment to section 7 but I should like to draw the Minister's attention to the fact that this section, which requires institutions of higher education to submit financial statements to the Authority, is as section to which no sanction is attached. I do not think any existing institution would fail to carry out its duty under this section. However, I wish to draw the Minister's attention, in the interest of himself and of the Authority which he is proposing to set up, to the fact that the section contains no sanction in a case where a higher institution may fail to deliver a statement of their financial position. The section merely says:
...it shall be the duty of every institution of higher education to comply with any requirements which are imposed on it under this section.
It does not say what will happen if that duty is breached. It does not say what will happen if an institution of higher education, at loggerheads with the Minister or the Authority, refuses to submit a financial statement. I do not apprehend that any existing institution would behave in that way; however, the Minister might like to know that this section as it stands leaves him powerless to proceed in any direct way—perhaps there are ways of the "uisce faoi thalamh" type which might enable him to bring an institution into line—to ensure that an institution will carry out their duties. I do not propose to put down an amendment on this matter. If the Minister agrees with me that this represents a loophole or lacuna in the Bill, it is up to him to put down an amendment. I thought it worth while to draw his attention, and the attention of the House, to it.
On section 11 there was a debate in the Dáil with regard to the idea that institutions of higher education should supply:
...all such information relative to the institution as An tÚdarás may require for the purpose of performing its functions.
I submit—and this was submitted in the Dáil—that it is too much to pharse the section like this. It is too much to lay a blanket duty on an institution of giving any information that An tÚdarás may require. I believe the section should be extended by inserting some word such as "reasonably" before "require". For example, a possibility of abuse of a political kind might arise where An tÚdarás, in the exercise of one of their functions, might require personal information from an institution regarding a member of their staff or one of their students. I do not think it proper that An tÚdarás should be put in a position of requiring that kind of information unless it is necessary for the discharge of main functions, and I do not think An tÚdarás should be the sole judge of that. It should be made objectively determinable by the insertion before "require" of the word "reasonably".
The first subsection of section 12 provides that:
There shall be paid to An tÚdarás, out of moneys provided by the Oireachtas, such amounts for institutions of higher education as may be approved of by the Minister with the consent of the Minister for Finance.
This subsection received a good deal of attention in the Dáil and the point was made, which represents a point which is strongly felt by the Academic Staff Association of UCD and the Irish Federation of University Teachers, that it appears to allow the Minister to pre-indicate how this money is to be allotted as between different institutions. I do not want to exasperate the Minister, I realise he has had to face this point before, but I felt I ought to indicate that I propose to put down an amendment to it, the object of which will be to ensure that the Authority will be able to make up its own mind how money should be allotted as between different institutions and should not have to receive dictation from the Minister, or the Minister for Finance.
In section 13 of this Bill the Minister proposes that:
An tÚdarás may institute and conduct studies on such problems of higher education and research as it considers appropriate and may publish reports of such studies at its discretion.
I believe—although a case could be made for very special circumstances of another kind—that if An tÚdarás does institute and conduct studies on problems of higher education and research it ought to publish these studies for the benefit of the public. Although the word "may" in a legal setting has been frequently interpreted and might, indeed, here be so interpreted as meaning "must", I do not think the section should be left to the mercies of legal interpretation. It should be put beyond doubt that if the Authority does institute and conduct studies on problems of higher education and research, the results of these studies must be made available to the public generally and to these Houses. I do not see that there could be any excuse for the Authority conducting studies into problems of higher education and research at public expense and keeping the results a secret. That could not be justified. I know the Minister may be surprised to find that I am even adverting to the possibility. Agan I say —and I assume in the Minister's favour that he would not wish such a thing ever to happen—that we are legislating not just for this year but possibly for 20 or 50 years ahead. We are still operating in the National University under a statute which is 63 years old, and we have got to take account today of the possibilities which may arise in the 21st century. I want to see this Bill freed, so far as our limited foresight enables us to free it, of possibilities of later abuse.
Section 14, subsection (1) says:
An tÚdarás may appoint such and so many persons to be its officers and servants as, subject to the approval of the Minister, it from time to time thinks proper.
No amendment was put down in the Dáil to this subsection. Reading it as best I can, it seems to me to mean that the Minister is given the power to approve and, therefore, implicitly to withhold approval from the nomination, not only of officers and servants in regard to their number, but also in regard to their identity. It is fair enough for the Minister to say: "You need a secretary and a certain subsidiary staff of four, six or eight or whatever number of people, and I will pay the salaries or make money available for paying these people's salaries." That is fair enough. But it is not right—and for a reason which will become very relevant later on—that the Minister should be entitled to say: "Not only will I tell you that you can have six or eight officers and servants, but I am going to tell you who these servants must be."
Let us talk plainly about this. The effect of this subsection as it stands seems to me to be that the Minister can transplant from his own Department into An tÚdarás such civil servants of his own choosing as he wishes. In the ordinary way there could be no objection to that. I can see no reason why that should not be done, but there is an objection to it which I shall explain later on. My submission will be, and I propose, I hope, to incorporate it in an amendment, that while the part of the section which speaks of "so many persons"—the number of officers and servants should remain subject to the Minister's approval—the identity of these persons should not necessarily be a matter for approval by the Minister. It would be fair and unobjectionable for this Authority, which is being given such wide and important powers, that they could at least be trusted with recruiting their own staff.
The Authority itself is going to consist of people, most if not all of them, part-time members. Certainly all but the chairman will very likely be part-time members of the Authority. Thus the Authority are going to have to operate by officers and servants. I cannot see what objection there is to that Authority being given the freedom to recruit whoever they like, if necessary to advertise for their officers and servants outside the Civil Service altogether. I am not saying that that would necessarily be a good thing, but circumstances might arise in which it might be a good thing. I cannot foresee these circumstances. But again I feel that the possibility here, not of this Minister, but some Minister in the future, packing the Authority with his own nominees, and these are the people who will be doing the work, ought to be avoided. The Authority should be trusted to appoint their own officers and servants.
I should now like to refer to the Schedule; I do not wish to say anything about sections 15 to 21 at the moment. I wish to say something about the Schedule which describes the constitution and operation of the Authority. I have already hinted in what I said about the definition section that I am uneasy about section 2 of the Schedule which reads:
2. The members of An tÚdarás shall be a chairman and not more than eighteen ordinary members of whom at least seven shall be academic members and at least seven shall be other than academic members.
I have already said I am not happy with the idea that somebody whose attachment to a higher institution is purely nominal could be regarded as an academic member. While I have not got offhand a good definition of an academic member—and I do not at all say it must be somebody who has no other occupation than teaching in an institution of higher education— an academic member of this Authority should be somebody, certainly, whose main work in life is connected with or takes place in the employment of an institution of higher education on the academic side.
Therefore, I do not like to see that the membership of this Authority is one which might be so contrived— again not necessarily by this Minister —as to have only a very thin and superficial representation from the institutions of higher education that it is now going to have such a strong position in regard to. I realise the Minister has said that he himself does not propose in the first instance to appoint out of the full 18 members. Whether he does or not, the section as it stands leaves the academic members in a potential minority.
I know there is a widespread suspicion of academics. Next to lawyers, I suppose, they are the easiest targets for cheap criticism, which they receive and have got in this House. I know the idea is current—or at least if it is not current it is easily suggested to the public—that academics are unrealistic people, frequently engaged only in pursuing their own interests and that these interests are of no public importance or value. I could rebut it, and do so very fully, but it would take up too much of the time of the House if I were to do it here.
I must say that the proportion suggested in this section which leaves the academic members potentially in a permanent minority is an undesirable one. It is perhaps right that it should be in the power of a Minister, if he sees good reason at a particular time, to leave the academic members in a minority. I do not think it should be done in this way. This mention of the word "seven" seems to me to invite a Minister to appoint only seven academic members. It seems to me virtually to invite him to appoint that minimum. It may not be the present Minister's intention to do that, but it seems to me nonetheless to be an invitation to make the academic members of this Authority a fairly small minority.
In section 4 of the Schedule I see that—
An ordinary member of An tÚdarás shall be appointed by the Government on the recommendation of the Minister and, before making a recommendation, the Minister shall consult thereon with the chairman of An tÚdarás.
Since the Minister accepted an amendment in the Dáil of a kind which, as I said last day, seems to me to be vague enough, in regard to one of the functions of the Authority being to "promote the democratisation of the structure of higher education", and as the Minister accepts that there is some value in the idea of democracy operating in institutions of higher education, I would have hoped that the associations, whether formal or informal, representing people who have to do the teaching in these institutions should be consulted before appointments are made.
I do not suggest that the Authority should have to go to the academic councils, or governing bodies or to the staff associations and say: "Would you please elect or re-elect people for us for the Authority?". I am not suggesting that, but I do suggest that this section ought to be extended so as to invite the Authority to take counsel with the academic councils or the academic staff associations of these institutions before making appointments.
It is possible to ruin an Authority of this kind and to get everyone's back up against it by appointing the wrong people. That happens not only in connection with State bodies. It can happen also in connection, for instance, with appointments to the judiciary. It is possible for a Government to make a serious mistake in appointing a judge, to appoint the wrong man, somebody who is known to be the wrong man and whom anyone in the profession could have told you was the wrong man, no matter what political side he belongs to. It is possible to do that and it has happened in ths country. I am not going to get into the question of political patronage but the reason why it has happened, apart from the political patronage angle, is that the Government, possibly inhibited through the fact that it is a delicate inquiry, has not taken enough or any advice from the people who are best qualified to advise it on who is going to make a respectable judge, because a judge who is not good, a judge who is rude or ill-tempered, who is short or unfair brings not only his own court but all the courts into disrepute.
Exactly the same thing is going to happen with an Authority which is going to have any kind of influence on an important section of life like higher education. If these seven academic members are hacks—and there are such things as academic hacks, I know that and I make Senator Ó Maoláin a present of that information if it suits him—there are such things as academic hacks, and these people can be pressed into the service of a government by being made chairmen of commissions, or being put in charge of boards, or being asked to compile reports or something of that kind. While they may do that job well, honestly and so forth, it impairs to a large extent their elbowroom, their freedom of manoeuvre and it undermines confidence in their impartiality and in their commitment to their own profession and its interests and to their own vocation.
Perhaps I have used too strong a word when I have used the word "hack", because I know that many of the people I have in mind have acted throughout with only the public interest at heart. But there is a certain number of academics in this country whose services have been availed of from time to time, and who have come to be identified with the Government. I do not mean with the Government Party exactly, but with the Government in a larger sense, with the establishment, and who although they may have done valuable work have compromised their situation with their own colleagues.
I think that if An tÚdarás turns out to have academic members in which such people are heavily represented it is not going to enjoy the confidence of the ordinary academic staff—let alone the students; that is another day's work. But it is not going to enjoy the confidence of the ordinary staff. I am not going to suggest that the Authority should be dictated to by the staff associations or by the academic councils as to who should be members of it, but I think the Government should be at least advised, in some perhaps permissive way, to take counsel with the staffs, whether in the formal organisation of the academic council or in the informal organisation of the staff associations, before appointments to the Authority are made. The only reason why I say that is that the Authority, if they do not take account of staff feelings, are going to handicap themselves from the outset. If there are people on the Authority who do not enjoy the absolute confidence of their colleagues in regard to their impartiality, whose freedom of action, freedom of manoeuvre appears compromised to their colleagues, this Authority will be handicapped before they start. I confidently predict to the Minister—and it may not be his intention—that if he appoints to this Authority academics who are not in a general way in a position of enjoying some confidence among their colleagues he is going to be in a situation of conflict right away. It will not be any time at all before that Authority are going to find themselves in conflict, and I think that it is important therefore that this section should be extended— and I am going to put down an amendment accordingly, in such a way as to enable the Government to take counsel with them before appointing members of the Authority. The same goes for the removal of an ordinary member of the Authority from office.
I want to keep this debate on as impartial and neutral a level as I can, but I have often noticed, since I came into this House nearly two years ago, that Senator Ó Maoláin, for example— I hope he will take this in good humour, I do not mean to be contentious—rarely misses a chance of firing some of his arrows at the academics on the other side. I sometimes feel that the reason for that is because his own party has not succeeded in recruiting enough academics, and if they could recruit them, we would hear less criticism of academics from them. It seems to me to be a fact which speaks for itself, that when people are put in a position of independence, namely in university jobs, they tend not to support the party that Senator Ó Maoláin represents. It is only when they have something to gain by supporting it, when people are looking for something, that they tend to flock towards that party. I wish, therefore, that Senator Ó Maoláin and those who feel like him about this would acknowledge that university people although in a position of privilege, which I also freely admit and will come back again to later on, would not be worth a damn if their approach to life was not critical, and that means that on the whole they tend to be dissatisfied with the establishment that they see around them. That may be one of the reasons why what Senator Ó Maoláin finds so inexplicable happens, that he can scarcely turn on his television set without seeing a professor or a lecturer laying down the law about something in such a way as to blacken the eye of the Fianna Fáil Government. If there was a Fine Gael Government in this country for long enough, the same thing would happen, and people on this side of the House would probably be complaining, though I hope not in such abusive terms, about the fact that the universities were filled with people who seemed to spend their lives taking cracks at us.
Leaving aside the question of the mental disposition of an academic, I think it is important that the staffs of all these institutions should be consulted both about the personnel of the Authority on their appointment and about the possibility of removing one of them. Suppose you appoint a professor or a lecturer or an assistant or some academic person to the Authority and he turns out to be a thorn in the side of the Government, that would be a very bad reason for removing him, but there is nothing in this Bill which will prevent his removal for that reason. I know that the Minister has gone some distance towards meeting this case in the Dáil by accepting an amendment which requires the Government to consult with the chairman before removing an ordinary member of An tÚdarás from office, but an amendment which was pressed in the Dáil to the effect that removal can only take place on a cause shown was declined by the Minister. I do not know whether the right way to do it is to insist that cause be shown or not. It might be more sensible if the removal of a member of An tÚdarás could be resolved on only by An tÚdarás.
It seems to me to be wrong that it should be possible for a person who is a thorn in the side of the Government to be taken off this Authority for that reason only. It is inherent in the nature of an academic that his approach to life will be critical, and if he finds a Government conditioning the life around him for too long, his criticisms will tend to point in that direction. I am not suggesting that this will necessarily happen only under Fianna Fáil. I do not think any Government should be in the position where because a member becomes critical of them, appears on television and speaks harshly of them, says nasty things about them, the Government are entitled to put him off the Authority. If that sort of thing happens, it will destroy the standing of the Authority with the university staffs and produce a sort of conflict compared with which the conflicts on Radio Telefís Éireann are a picnic. There will be conflict between the Authority and the universities if the staffs are not consulted and if their feelings are not borne in mind. I am, therefore, putting down an amendment to this section.
There are only two other sections in the Schedule upon which I wish to speak before I move to some more general matters and to put the Bill in a more general setting. Before doing that I wish to draw the attention of the House to two other sections of the Schedule.
Section 16 says:
Every question at a meeting of An tÚdarás on which there is disagreement among the members present shall be determined by a majority of the votes of the members present and voting on the question and, in the case of an equal division of votes, the chairman of the meeting shall have a second or casting vote.
I do not wish to press this with vigour, and I have not yet made up my mind whether I will put down an amendment on it, because if the Minister, in replying, were able to convince me that the point was of no substance, I would not waste the time of the House.
I would suggest that the majority in the Authority in a voting situation should be a qualified majority. There should be some way of making sure that, if conflict develops in the Authority between the academic and the non-academic members, the non-academic members cannot outvote the others. As the Minister knows, there are such things as qualified majorities in the European Economic Community to which we are seeking admittance. This ensures that on certain issues and in some contexts, smaller powers have an entrenched position which cannot be taken from them. It would not be a bad thing if the majority spoken of in section 16 were a qualified majority, qualified in such a way that the academic members, if unanimous, against the rest, could not be outvoted; in other words, that the academic members, if themselves unanimous, could effectively veto what the non-academic members, although a numerical majority, wished.
In case Members on the other side think that this is undemocratic or that it is in some way unprecedented in our legislation, I will draw their attention to the examples provided by the Censorship of Publications Act, 1946, which sets up a Censorship Board of five persons of whom four can form a quorum. A book cannot be banned by these four members unless three vote for its prohibition. If there were four members present, one did not vote and one voted against the prohibition and two voted for prohibition the book could not be banned. There must be three out of four people present voting for the book's prohibition. The intent of that qualified majority is to favour the liberal end of the question. Where the committee is divided, the preference is given, or the benefit of the doubt is given, to the liberal side.
I do not wish to equate liberal with academic, but it is an equation which is far from being necessarily wrong. It would not be disgraceful if this Authority were to be placed by law in a situation in which they could not vote down all their academic members. In other words, if all academic members are solidly against something which the Authority by their non-academic majority proposes to do, it should be possible for the non-academic members to block it. That is not undemocratic, or, if it is, it is something which is being forced on me by the way in which the Authority are proposed to be constituted. I urge the Minister to consider this. I may put down an amendment about this.
The last matter I wish to deal with is this. Section 22 of the Schedule says:
An tÚdarás shall appoint one of its officers to be Secretary of An tÚdarás.
Section 23 says:
An tÚdarás may perform such of its functions as it may deem proper through or by any of its officers or servants duly authorised in that behalf.
I have already explained to the House what is proposed by the Minister in regard to the recruitment of officers. Putting it bluntly, it is proposed that the Minister should provide the Authority with a staff. I presume that that staff would be drawn from his own Department. I am willing to be contradicted if I am wrong in this, but it seems from the drafting of section 14 that this is the intention of the Minister. In other words, the Minister can probably, as I would read section 14 of the Bill and section 22 of the Schedule, decide who is to be secretary of this Higher Education Authority.
Section 23 of the Schedule permits the performance by an officer or servant of the Authority of any of its functions in its own discretion. If we look at the functions which the Authority have got, we find that the financial ones are perhaps the most important. In section 12 (2) it is proposed—
Any payment to an institution which An tÚdarás makes out of the amounts that it receives under the foregoing subsection shall be made in such manner and subject to such conditions as An tÚdarás thinks fit.
The joint effect of section 12 (2) of the Bill and section 23 of the Schedule is that it is open to the Authority to say "We propose that our function under section 12 should be exercised by the secretary of the Authority on our behalf," in order words by a civil servant. I do not think it likely that the Authority of the kind I believe the existing Minister would set up would be likely to do that. I am saying— for the fourth time in this speech— we are legislating, not for today, but possibly for half a century. We do not know what kind of Government we will have. They may be far worse than any we have ever known. We may get a Government inimical to learning and dissent, and inimical to the kind of places which produce learning and dissent. It is a serious loophole if this Bill goes through with section 23 of the Schedule, unamended, which gives a blanket permission to the Authority to confer any of their functions on any of their officers, who are not members of the Authority but permanent officials.
As I said, I do not think it likely that the Minister will appoint this kind of Authority. I cannot imagine an Authority in the year 1971, such as might be appointed now, conferring in an unqualified way on their secretary or one of their other permanent officials drawn from the Civil Service a function of this kind. But as this Bill stands it is possible for them to do so as I read it. It would be possible for a permanent official over which no House has any control and over which the Authority themselves have only a limited control, to be given the job of deciding the manner in which, and the conditions subject to which, payments to institutions are going to be made. It may be that I have misunderstood the joint effect of these sections, or it may be that the Minister has an amendment up his own sleeve to deal with it. However, I ask him to consider seriously the possibility to which I have adverted. Unless he convinces me that I have misunderstood the joint effect of these sections, I intend to put down an amendment. This will be to remove the possibility of the Authority being allowed to divest themselves of this important function, and to entrust it to one of their own permanent officials.
I cannot leave the subject of this Bill without putting the whole question of higher education into a somewhat larger context. Last week I said that the Authority which we are now about to set up are going to be dealing not with just an academic product, but with a highly political product. We know what is meant by that. We know that higher education and all forms of education are politically sensitive today, in a way in which they never were before. The reason for that is that the things which are thought of as desirable by people in this kind of society—a society which is competitive and capitalist—I am not necessarily using these words in order to imply condemnation—are things which are increasingly accessible only through education.
I am often angered when I see in newspapers the jargon which pours from ministerial mouths, and sometimes from our own side, too. These are phrases which turn into clichés in a matter of weeks or months. The one which most enrages me is "the quality of life". You cannot open a newspaper without seeing the Minister for Finance, Deputy Colley, or Deputy Haughey or some other Minister telling schoolchildren about the quality of life. It is a revolting expression, not so much by itself but because very often it is uttered by Ministers whose own contribution to the quality of life here has been so unremarkable.
