Higher Education Authority Bill, 1970: Committee Stage (Resumed)
Amendment No. 15, by leave, withdrawn.
I move amendment No. 16:
To delete subsection (2) and substitute the following:
"() Any payment to an institution which An tÚdarás makes out of the amount it receives under the foregoing subsection shall, with respect to capital grants, be made in such manner and subject to such conditions as An tÚdarás thinks fit. Any payment for current expenditure shall be made in the form of block grants."
I will be very brief on this. I am anxious to hear the Minister in more detail. He spoke earlier about the link, which in his mind existed between the two amendments and, I presume therefore, between the two subsections. It seems to me that our amendment on this subsection is one if anything of greater substance than the one which we framed on the first subsection.
After listening to the debate this morning it seemed to me that certainly the framing of our amendment on the first subsection could do with improvement. I am not at all certain that this is the case in regard to the amendment on the second subsection. It seems to me to be quite obvious and worthwhile. What we propose is, in effect, to tie the hands of An tÚdarás in a certain way. While the Bill, as framed, does not necessarily prevent An tÚdarás from making block grants for current expenditure, it does enable An tÚdarás, if it so wishes, to control the current expenditure of institutions of higher education in a way which we do not believe is acceptable.
The Robbins Report on Higher Education in Britain stated on page 275 that it was in favour of control of higher education through general block grants administered through an independent committee or commission appointed for its expert qualifications and not for its political affiliations. In An tÚdarás I would hope we would have this independent committee or commission. I do not see why we should not also have the administration involving the use of general block grants which the Robbins Committee also thought was worthwhile. Obviously there has to be a balance between the co-ordination of university and other higher institutions generally and the need to safeguard some form of autonomy within these higher institutions.
I believe that the present section is dangerously ambiguous in that it makes it possible for the authority to apply all sorts of conditions to the granting of moneys for current expenditure. There is always a sanction open to An tÚdarás if institutions of higher education become awkward in their requests for money for current expenditure or in their allocation of moneys which they receive under a block grant for current expenditure. There is always the sanction of the capital grant. If the institutions prove awkward on current expenditure the Authority, by trimming capital grants appropriately, can ensure more or less directly that the institutions concerned come to heel or at least acquire some sense of proportion in what they are doing.
It seems to me the only alternative to the kind of amendment we are proposing is to do away completely with the concept of autonomy as it affects institutions of higher education and have direct control. We are not in favour of this. We are in favour of an intermediary stage. We do not believe that this intermediary stage finds adequate expression in the subsection.
I should like briefly to support this amendment for the reason that Senator Horgan has given and the importance of giving a certain flexibility to the universities in relation to current expenditure. As is pointed out in the Dáil Debates and as is evident to anybody who has any knowledge of the universities, there is a certain area in which it might not be on a manpower basis, that they might not be incredibly efficient in their current expenditure, and yet it is part of the meaning of the university and there must be economy in this area and there must be flexibility.
I should like to refer to a statement made by the Minister in the Dáil on Committee Stage. The reference is the Dáil Official Report for 1st April, 1971, column 2014. The Minister said:
There is also the matter of the right of An tÚdarás to attach conditions to payment of the recurring grant. This is included so that An tÚdarás may, in consultation with an institution, agree to fund some new activity or area of study on an experimental basis. Such an arrangement might be associated with the development of a particular centre of excellence in the institution concerned. An tÚdarás and the institution could consult closely in such a case during a trial period of several years when the value and desirability of proceeding with the experiment could be assessed.
Unfortunately, I do not thing that this attaching of conditions of current expenditure is necessarily confined to that. As the wording of the section now stands, I think An tÚdarás would be entitled to attach all sorts of conditions to current expenditure and could emasculate the autonomy of the universities in relation to this. This is a danger that the universities appreciate. An tÚdarás would be able to declare certain departments, certain small faculties, certain rather rarified research in universities, not to be sufficiently related to Irish life or Irish employment to be worthwhile continuing. I do not think this is a function the Higher Education Authority ought to have but by the present wording of section 12 it would be possible for the Higher Education Authority to do this. Perhaps this second amendment is one which the Minister might be prepared to accept on the grounds that it would give the Authority the power to grant capital expenditure with whatever conditions it sees fit attached to it, but to give flexibility in relation to the working out of and speeding of the current grant because the amount has been given in the form of a block grant and not an itemised grant with conditions attached.
The Minister must appreciate this as a very important principle in the university. It is one which is at the centre of university autonomy. It is one which is very important for the development of research in this country. It is one thing to decide that a particular type of study or research or teaching is fairly far from the employment possibilities in this country. Even the teaching of classics or research in classics might be said to be remote from the Irish scene; yet if the condition were to be attached to this—that either they must have more students next year or some such condition—if a particular faculty were run down it could probably never be built up again. This would be very bad for the university, very bad for the concept of teaching and autonomy in the university. There is a great difference between the flexibility necessary in relation to current grants and the control desirable in relation to capital grants.
The amendment suggested might give a greater feeling of autonomy to the university but it might in fact have a bad result for the university because it might mean that they would get less. I can see many cases in which An tÚdarás would be willing to give an additional amount of money provided certain conditions, provided their point of view about a certain thing were recognised, but if they are not allowed to do this they would give a smaller block grant.
What the university has to weigh up in circumstances such as this is the importance of autonomy on the one hand and on the other hand whether it is worth while having a certain dialogue with An tÚdarás and by agreeing to certain conditions get some extra money. If they feel the conditions are onerous they need not agree but it may mean they will get considerably less money. On balance this might be a disadvantage to the universities and I am not so sure that they would want this amendment if, in the long run, it meant that they would get less money.
I should like to follow up what Senator Ryan has said because it is the heart of this particular amendment. He has suggested that the universities might end up, if this amendment were passed, getting less money than they might otherwise have. What is attempted to be preserved here is the autonomy of the universities which in the past has allowed universities to make the decision to take less money rather than do what central authority wanted them to do.
It is not true to say that the Bill as it stands would allow them to do this. No matter how much or how little money they get under the section as it stands, An tÚdarás can attach conditions to the spending of it. Universities have in the past, on occasions, under the university grants committee, as I mentioned during the Second Stage, refused to follow recommendations and guidelines of the university grants committee. They have in consequence suffered financial cuts. It is this freedom to make up their minds in a particular instance, to forego certain funds rather than to be told they must do certain things, which is the concern in this regard.
If this amendment were passed it would not mean that there would be no sanction at all in the hands of An tÚdarás. An tÚdarás will annually be able to control, be able, in the light of what a university has done in the past year, to make up its mind how much it should properly be given for the ensuing year or longer period. It is empowered under this Bill to look for information in regard to the way in which last year's grant has been spent. But if this section as it stands is passed without this amendment, quite irrespective of the level, it does not merely permit a certain portion or a small portion of the current grant to be earmarked but it would allow the whole of the current grant to be earmarked. That is the position that the universities feel may lead to a restriction of their freedom far beyond what is required in the interests of the common good at the moment. Universities are quite content that there should be some restriction of their autonomy in this regard but not the extent of this section as it stands in its unamended form.
As I see it, the main part of this subsection relates to block grants. I take it that you do not get carte blanche for the expenditure of an amount of money without any allocation, whether it is for capital or current expenditure. It would be bad to have something like that in the universities. This section is one which gives An tÚdarás some power to deal with different faculties in the universities. If they did not have this it would be taking away a good deal of their power. They could just wave them goodbye and refuse to give any information that should be forthcoming. This amendment would not only be taking away their power but also would be getting away from having two allocations, one for capital and the other for current expenditure. This would be a very bad business. This is a very important section because it is giving a fair amount of power to An tÚdarás and it needs no amendment. This amendment, if agreed to, would certainly weaken An tÚdarás.
Might I appeal to Senator Crinion to read the amendment and the section and to note that the amendment makes a clear distinction between capital grants, which can be earmarked down to the last detail, and current grants which cannot, and to look at the section which makes no distinction between capital and current. The distinction between capital and current which Senator Crinion is urging is in the amendment and not in the section.
I wish to support the case made by my colleagues here on the necessity for this. It is at the very centre of university autonomy: the autonomy in a given period to spend their current grant as they think fit. This does not mean that there is any element of wrongdoing, or of taking money from one desirable project and putting it into another that is less desirable, because at the end of the year it has to be accounted for. It is the normal freedom that universities always require in dealing with current expenditure.
I have been on the board of some bodies, the Institute for Advanced Studies in particular, which is supposed to have certain features of university autonomy but which is tied hand and foot to the Department of Education. All sorts of day-to-day decisions on using money to the best advantage have to be checked back in a way that no university would tolerate. What is asked for here is in line with what the University Grants Committee in England recognise as normal practice. If that has been good enough in socialist Britain with all its managerial tendencies, then surely it is good enough here. Might I ask the Minister to show that the Seanad is making some contribution to this Bill by going some way to meet our suggestions here. Otherwise we will be inclined to feel that the consultations with various bodies which are embodied in the Bill are much like the consultations that are going on between the Minister and the personnel of the Seanad. We are advancing cases and at all times we are simply being refused.
I would appeal to the Minister to show a bit of give and take in this— give and take that is in line with what we enjoyed when the late Deputy Donogh O'Malley brought an Education Bill before us, or when Mr. de Valera himself piloted the Agricultural Institute Bill through this House. In both instances the Seanad was treated as a mature body and the opinions expressed were regarded as opinions genuinely held as coming from people who had some competence in the subject of education. I would appeal to the Minister to treat the House in this adult fashion.
The debate in the Seanad on the various amendments to sections of this Bill has been an exceptionally good one and will be of considerable assistance to An tÚdarás when they become a statutory body. This does not mean that I should accept amendments if I do not feel that they should be accepted. Many of these amendments are amendments which have been thrashed out at considerable length in the Dáil. Prior to the debate there I had a part in the formulation of the Bill. I studied the sections of the Bill very carefully. I studied them also in relation to the discussion in the Dáil and I have since made it my business to examine very carefully the amendments put forward. If I have not accepted them it is not that I do not take it that Senators opposite have put them down in good faith, but simply that I do not think that they improve the Bill.
I have been very interested in one aspect. I find on the one hand amendments put down here where Senators have spoken very strongly of An tÚdarás having freedom of action, and on the other hand I find amendments put down to curtail this freedom. The purport of this amendment is to remove in regard to current grants to institutions the proviso that such grants, as well as capital grants, be made in such manner and under such conditions as An tÚdarás thinks fit. The anxiety of the Senators who have proposed this amendment is, apparently, to ensure that there will be no element of earmarking in the recurrent grant paid to any particular institution; that is to say, that An tÚdarás will not specify that any particular amount in the total recurrent grant be applied to any particular purpose or activity.
Much has been made of this allegedly sacred principle that there must be no earmarking in relation to recurrent grants. It has been stated here that this is an invasion of the autonomy of an institution. This, of course, is not so. Under the present system of payment of recurrent grants to universities there is already an element of earmarking which is quite acceptable to those institutions. For example, in relation to equipment renewals, repairs, adaptation and such like payment is made only on receipt of vouchers for expenditure incurred. I do not see any reason why An tÚdarás could not have the same discretion in this matter as my Department has had up to the present and which the institutions concerned have accepted as reasonable and normal.
It is possible that, for example, an institution of higher education might propose a new course for a limited or trial period. I have mentioned such cases already in the Dáil. In such instances it would be normal for the institution concerned to seek a definite sum for such a project. It is also normal when the total amount for current expenditure is being notified to an institution to state that it contains a sum for a particular project. Earmarking of this nature has always been accepted. It has been welcomed in so far as it ensures that the money will be available for the project and not spent on something else.
I would add, as I did in the Dáil, that there could be no question of interference with the day-to-day running of the institutions of higher education. I am sure Senators are aware that the vast bulk of the current money would be committed in such a way as to allow even the institutions of higher education themselves very little discretion in regard to it. In relation to the number of points I have mentioned where earmarking could be useful, and is useful and accepted, we should not tie the hands of An tÚdarás. There can be no question of An tÚdarás interfering with the day-to-day running of the institutions concerned.
Quite obviously, in the case of capital sums, it could happen that because one institution did not proceed as rapidly as expected with a project and another institution proceeded more rapidly than expected a transfer of money would be necessary and proper in such a case and that, I accept, is included in the amendment. Nevertheless, I feel, from a study I have made of this matter, that we should not tie the hands of An tÚdarás here. It would be only in very exceptional circumstances that they would interfere in any way with the spending of current money. As I have already said, it would be very difficult for them to do so. Basically, I think they are entitled to and should have a right in the instances I have mentioned, and in relation to other small items that might crop up from time to time, to have a certain discretion in relation to this matter.
The Minister does not strike me as being a particularly arrogant man and yet I find his conviction that this is a perfect Bill in a sense an arrogant conviction. The Minister said these matters in relation to section 12 were raised in the Dáil. We have read the relevant portions of the Dáil Official Report, and, in fact, some of it will be on the record of the Seanad as well. The Minister says he has thought about this matter. Has he consulted the universities? Has he consulted the ad hoc HEA that exists at present? He seems to look into his own heart, decides the section is perfect as it stands and that he will not consider any amendment to it.
The argument has been very well made here that there is an important difference between capital and current expenditure in relation to the universities and that the proper method for the payment of current expenditure is by means of a block grant. I do not accept that the Minister has given adequate reply to this argument when he says that in relation to some matters of current expenditure now they are itemised and the bills are presented. These can be presented to An tÚdarás when they are deciding the size of the block grant to the university.
This is, I think, a detail and it does not answer the argument that what is sought here is essential to university autonomy, essential to the general principle of the university being allowed to decide its own priorities in current expenditure and its own distribution of current expenditure when the block amount, the amount that the community is prepared to give the university for education, for current expenditure has been decided. Capital grants can be itemised and conditions attached to them.
The Minister has not really accepted this very important principle. His mind is not as open as he would have us believe in regard to this matter. He has not consulted those who will be implementing the scheme and those to whom it is a matter of great concern.
Even if we were to accept the Minister's point that it might at times be desirable to earmark a portion of the recurrent grant to an institution for higher education, the section, as he proposes it, goes far beyond this. The section indicates that any payment to an institution which An tÚdarás makes out of the amounts that they receive "shall be made in such manner and subject to such conditions as An tÚdarás thinks fit." If there is a conflict between an institution for higher education and An tÚdarás this makes it possible for An tÚdarás to dictate completely to the institution in regard to the courses that it runs and the academic activities which it carries out.
The section, as it stands, would allow An tÚdarás to attach a condition that the university should do a certain thing and make such a condition precedent to the receipt of any money for any purpose outside the particular one that is in dispute between An tÚdarás and the university. Even if the Minister is not willing to accept the amendment in this form, would he be willing to consider an amendment which would ensure that any conditions attached by An tÚdarás to a grant would be conditions relating only to that particular sum and that particular part of the grant? The section is absolutely wide open as it stands. It enables An tÚdarás to decide that there should be a particular course of a specific type in an institution and allows them to force that institution to carry out that course.
If an amendment of this type were put into the Bill it would not be possible for an institution to divert funds from one project to another. It would, at least, entitle an institution to say: "We do not believe that it is academically desirable for this institution at this time to run this course or carry out this particular activity and we do not want the money for it. We want to continue on with what we have been doing. We want to carry out the various other activities on which there has been agreement between An tÚdarás and the institution."
It may be that the Minister will come back with his old argument that we must expect An tÚdarás to be reasonable in this regard. However, I think we have to allow in legislation of this kind for the fact that there might well be the temptation to An tÚdarás at any time where there is a sharp conflict of opinion. They might, in their enthusiasm to see something done, put an academic burden on to an institution of higher education which they did not want to bear.
An tÚdarás has certain functions under which they are not only entitled, in certain circumstances, to make conditions but they would be obliged, if needs be, to lay down conditions. If we take general function (d) "promoting the attainment of equality of opportunity in higher education" An tÚdarás might consider that universities should have night classes but the university in question might resist such a proposal. An tÚdarás in such a situation would not only be entitled, but obliged, if they had come to the conclusion that this was an essential part of the carrying out of that aim, to make a condition. That is just one case where An tÚdarás would be obliged, because of its duties and because they are obliged to carry out certain functions, to make conditions in certain circumstances.
Senator Dooge has conceded in his contribution just now that there may be certain situations in which conditions would be necessary. He is arguing that it may be permissible in certain circumstances but that it should not be attached to the whole grant. If you agree that in certain circumstances—I merely mentioned one case but I think there must be many cases—the functions of An tÚdarás would put them in a situation, having made a decision in principle, that they must insist that a university does a certain thing, then they would be under an obligation to lay down conditions. One should concede the principle that in certain circumstances this may be necessary. The amendment that has been introduced would not deal with that situation. You must have in certain cases conditions laid down.
Is Senator Ryan suggesting, to take his own example, that if a university considers that it cannot offer night courses to a degree standard with the facilities and staff that it has An tÚdarás should say: "If you will not run night courses we will not let you run day courses either". Is that the Senator's suggestion?
No, that is not my suggestion.
Would the Senator clarify what the suggestion is? This is one reading that could be taken from it.
The suggestion is that conditions are necessary in certain cases.
How then would Senator Ryan anticipate that An tÚdarás could attach conditions to the grant, unless it penalised the other activities that are not in dispute?
Could I suggest, in answer to the question that Senator Dooge has asked, that there are various areas of higher education, professional education in particular, that have been subjects of controversy between the university institutions, particularly in Dublin. However, certain areas have also been agreed: two of these are dental education and veterinary education. It has been agreed that we should have only one veterinary school in Dublin and one dental school. For the sake of argument, suppose that in a few years' time one of the two universities, or one of the two university institutions in Dublin were to say to An tÚdarás "We are going to have a second dental school", surely An tÚdarás would have to have some means of coming back in that situation and saying: "No, you cannot, because we shall not give you the money for it"?
I can see a great deal of merit from the point of view of the academic institutions in this amendment, but I can also see the Minister's difficulty and the difficulty that An tÚdarás will be in if such an amendment were made. A phrase should be added to the end of that amendment, such as: "Any payment for current expenditure shall be made in the form of block grants in accordance with such developments as have been agreed between the institution and An tÚdarás", so that they may agree on a pattern of development and get a block grant to develop that in the way desired.
Subsection (2) of section 12 states clearly that any payment An tÚdarás makes out the amounts it receives under the foregoing subsection shall be made in such a manner and subject to such condition as An tÚdarás think fit. If a person pays the piper, he must be allowed to call the tune. If you make any amendment to this section, you are taking quite an amount of power from An tÚdarás.
The suggestion ade by Senator Jessop is a good one.
It relates to a development plan. However, you want to safeguard the day-to-day running, over the current period which, in most cases is a year— An tÚdarás itself or the ad hoc body do not want this power. I should like to ask the Minister if he has discussed this with them and if they have insisted that they want this power. No reasonable body of men would look for this power, because it would encourage them to interfere with university affairs beyond what would be good for the university or for the nation. The body set up is not a university body: it is for all third level education, and the university members, as classified, are in a minority of possibly as little as seven out of 18. It is therefore, quite possible that the tendency to treat universities in the way that technical schools have been treated in the past—with all this mania for close control—could spread to such a body. This would have disastrous effects for the Irish university system. There is a mania among all for control, and the only person who is reasonable is he who has all the control. In the case of An tÚdarás versus the Government, the Government have all the power. Would they always be reasonable in the use of that power?
At the next level An tÚdarás must have all this absolute and unnecessary power over their bodies and, in turn, we should be depending on their reasonableness. For a change, why not take it that the universities concerned would be reasonable bodies, and would have to behave in a reasonable way? Consequently, if they put up development schemes, the schemes would have to be discussed with An tÚdarás and, we hope, with the Council of Irish Universities, when that is in the system, and therefore approved of and money given for it. Having worked out an arrangement in that manner, would anybody be so unreasonable or foolish as to say: "Now that we have that money, we shall not spend it on that project this year: we shall spend it on something else, may be on a new dental school". It is so far-fetched that it should not be advanced in such a serious assembly as Seanad Éireann.
I appeal to the Minister to accept the present amendment and to accept the fact that in development schemes both sides will behave reasonably. Alternatively, I ask him to accept on Report Stage an amendment along the lines suggested by Senator Jessop.
Some of the remarks made by Senator Quinlan remind me of a number of amendments which, if taken as a whole and accepted, would mean that An tÚdarás would be absolutely free of any interference by the Minister, and the universities would be absolutely free of any interference by An tÚdarás.
We do not make things as absurd as that.
Even though Senator Dooge has anticipated me, we must accept that An tÚdarás will be composed of responsible people. There could be no question of forcing an institution to undertake a burden that it does not want to bear. On the other hand, if an institution accepts such a burden subject to certain conditions An tÚdarás should be empowered to see that the conditions are carried out. There is no point in saying that An tÚdarás would have information available to it at the end of the year: that is tantamount to locking the stable door after the horse had gone.
I consider that the case I have put up here in favour of the section, as opposed to the amendment, is a reasonable one. I have pointed out that, insofar as current expenditure is concerned, there could be very little interference with it in any case. It is purely theoretical to suggest that An tÚdarás could interfere with any section of it. On the other hand, An tÚdarás should have the right to ensure that money allocated for a particular purpose, and earmarked for that purpose, should be used for that purpose. I cannot therefore accept the amendment.
If I understand the Minister correctly, he says that there is no question of any institution of higher education being asked to undertake a burden which it did not wish to carry. Is that correct?
It should not be forced to undertake a burden. Is the Minister willing to write that in as a third subsection to this section? Is the Minister willing to accept an amendment which would say that in the attaching of conditions to any current grant under subsection (2), nothing shall be done which will—to use the Minister's words—force an institution of higher education to undertake work which it feels itself is not suited to its academic purpose?
No, but I forgot to say on the previous occasion that I was asked by both Senator Quinlan and Senator Robinson if I had consulted with the HEA in relation to the subsections in section 12. I wish to say that I have consulted with them and they are quite satisfied with them.
Has the Minister consulted with the HEA since the debate in the Dáil, and the discussion on this, and the amendments?
I have had consultations during the course of the Dáil debate. I have had discussions with them, and they have been satisfied with the situation as it is.
I take Senator Dooge's point very well that, as the section now reads, not only have An tÚdarás got power to attach conditions to either capital or current expenditure to the universities but the universities, on the face of it, do not even have the power to refuse these payments. I note in section 17 (2):
An tÚdarás shall not accept a gift if the conditions attached by the donor are inconsistent with the functions of An tÚdarás.
We might give the same flexibility to the universities. The universities need not accept a grant if the conditions attached are contrary to the views of the institution itself.
I would take it that An tÚdarás could not do anything that would be inconsistent with the development of higher education.
Amendment, by leave, withdrawn.
Question proposed: "That section 12 stand part of the Bill".
We had a discussion this morning as to whether the amounts to be paid to An tÚdarás should be a single amount or two amounts. I am sorry to confuse the issue by bringing in the question of a third amount which might be itemised in the Estimates. The financial provision to be made for education and institutions of higher education does consist of three parts. It consists of firstly, the payment of capital grant, secondly, the payment to the institutions for current grants and, thirdly, it consists of the payment of scholarships and support grants to those attending the institutions of higher education.
I take it from what the Minister has said in the other House and in this House that it is the intention that the payment of such grants, the conditions and administration for such grants are to continue to be the concern of the Department if not of An tÚdarás. I believe that there is a case to be made— I am not saying it is a compelling case— in the interests of co-ordination that perhaps sometime in the future it might be desirable that these payments should be made through An tÚdarás. They would, in their planning of educational development have regard to their objective, to which Senator Ryan referred a few moments ago, of the equalisation of opportunity in regard to higher education. They will be advising the Minister in this regard. I should like to ask the Minister does this Bill and this section as they stand exclude the possibility that at some time in the future the handling of these payments will be by An tÚdarás.
I am informed that the Higher Education Grants Bill would have to be amended if we were to include this.
If there were any consequential amendments they could be made at the same time?
Would the Minister indicate the reason why he has chosen to continue the existing scheme under the Department rather than combine it with the general payments to An tÚdarás?
These grants are administered by the county councils so that would have some bearing on it.
This, surely, is a relic of the old scholarship scheme?
For administration purposes it is a pretty useful relic.
I realise there are certain advantages in the county councils being involved. The universities themselves were able to deal with the county councils under the old universities scholarship scheme. The registrars of the colleges were continually in communication with the county councils in regard to scholarships and the progress of students. But if that were the only reason for this retention it is not a very compelling reason.
If we look at the financing of the current expenses of higher education we are in the position that the recurrent grants which are covered by this section are given to the universities for the carrying out of certain activities in regard to research and also for the financing of the teaching activities of the universities—not for the complete amount of this financing because we still have fees and in the case of students in certain categories these fees are met by portion of their grants. These things are intertwined. I would ask the Minister to keep an open mind on this and not to assume that for the convenience of administration, which might well mean in the end for the sake of not having to change the administrative scheme, he should not close his mind to possible changes in this regard.
My understanding of it is that the grants or scholarships are administered through the county councils mainly because students are subject to a means test. The investigations have to be carried out at local level. I cannot see how any better system of carrying out these investigations into the parents of students can come about other than the present machinery being used. If it were transferred to the Higher Education Authority they would have to go back again and ask the county councils to act as their agents.
Perhaps I was not clear. The county councils could act equally as the agents of An tÚdarás as they can of the Department.
Arising out of this section regarding the money provided by the Oireachtas and the Minister's scheme, which does not have statutory sanction yet, by which he agrees to give a certain block grant to An tÚdarás for capital and for current, I understand that in that case An tÚdarás would proceed to make subdivisions and would notify the amounts to the Minister and have them published in the Book of Estimates. That is the procedure, is it not?
Everything is done in a hurry when the Book of Estimates comes. There is only a short interval between the notification of the grants and it would seem that An tÚdarás would have a very short interval in which to assign the grants. If they get what they ask for they will have no difficulty in assigning it but, on the other hand, if the national economy creates a situation in which they will have a severe cutback on what they have asked it would then become a very difficult task to know how should the money be apportioned. It is something that could take quite a long time. It would certainly be longer than the short interval between the notification to An tÚdarás of what they are to receive and the publication in the Book of Estimates. Is there any provision for changing those figures. An tÚdarás might not be in a position to allocate all they had and might decide to leave it over some for a few months until they had made some further investigations.
I dealt with this this morning at some length. I pointed out that the universities have already accepted and have acted on the understanding that they will have to furnish their own estimates much earlier than heretofore.
Yes, but my point is in relation to a cutback. It is all right where what has been agreed between the various institutions and an tÚdarás is granted, what will happen if the exigencies demand, as happened this year, an increase of £200,000 and we are given only £120,000 without any guidance as to how we are to bridge the gap? If An tÚdarás gets less than it asks, it then has a serious problem as to how to make the best use of what it gets.
I do not see why I should have to deal with this matter again, having dealt with it fully this morning.
I am sorry I was not here then, but this is a very real problem to me as I am very close to university administration.
The point is that the whole operation must start considerably sooner than has been the position before and when the amounts are agreed upon An tÚdarás will discuss with the various institutions what their priority should be in those circumstances. This will all be done before the publication of the Book of Estimates.
There will be a much longer interval then before the publication of the Book of Estimates and the notification to all bodies concerned as to what they are getting?
Another point I wish to make is the question of capital grants. Heretofore if the amount was not spent in the year whatever residual remains went back. In this case would the residual going back be just the residual of the total amount rather than individual residuals in the allocations made by An tÚdarás?
None will go back. It is a grant-in-aid.
So that is a departure from the present system?
I think that is a worthwhile departure.
On the Second Reading I mentioned that there was a deficiency in the amount granted by the Government to pay for An tÚdarás. As an example I quote a figure of £500,000. This money is allocated for capital purposes and certain works have been on foot. "On foot" can have different meanings. It can mean that a project is just at the planning stage or that building is in progress. Under section 12, money is allocated to An tÚdarás, and if money is to be spent economically on projects, it should grant the necessary money to any institution that has work on foot. If it gets a block grant which is less than the amount requested, it will, under section 12, have to reduce either capital sums to other institutions or sums allocated for current expenditure. If the Department will not give to An tÚdarás the money it is looking for how is a project which is in progress to be dealt with? Will it be delayed for another year or two?
In the matter of capital projects the cost is assessed over a period of years and you make the money available on that basis.
I appreciate what the Minister has said.
It would not be sensible to leave a structure half built.
But there are buildings under construction before An tÚdarás comes into existence for which provision has been made perhaps more than a year, but not for their completion. I referred specifically on the Second Reading to the library on the campus at Belfield for which money has been allocated ahead for more than a year, but only two-thirds of the amount required. The remainder is not yet allocated but the intention to give it has been mentioned.
This would be something An tÚdarás would have to examine.
Question put and agreed to.
SECTION 13.
I move amendment No. 17:
In line 3, to delete "may" and substitute "shall".
Amendments Nos. 17 and 18 are alternatives and may be discussed together.
The amendment is to ensure that when An tÚdarás, under section 13, institutes and conducts studies on such problems as higher education and research as they consider appropriate they shall publish reports of such studies. On the Second Reading of the Bill Senator Nash put forward the idea that there ought to be an obligation on An tÚdarás to publish, and I heartily agreed with him on this. It is to be welcomed that An tÚdarás has the power to initiate studies both on problems of higher education and research. It is the appropriate body to initiate studies. It will have the wealth of exchange of views from its various members. It will presuambly conduct these studies in the areas where it is necessary and it will have the better resources with which to do it, which will be voted under a separate section of this Bill. This could be a fruitful field in relation to both higher education and research. We must impose on An tÚdarás a duty to publish these reports. There is a tendency in setting up certain bodies not to impose a duty to publish. Thinking in my own narrow context, I bring to mind the Committee on Court Practice and Procedure. I do not think it had a duty to publish its various reports and certainly not all of them have been published.
Few people will deny that there is too little research taking place in this country, too little study being made into various problems and there is a need for information, particularly in relation to higher education. If we are funding a particular research project, if we are allowing the Higher Education Authority either to commission outsiders to carry on research, or to have it done in one of the institutions of higher education, there ought to be a duty to report. There ought to be this communication with the people. It ought to be possible to buy this report and to study it. The cost of this report would be much less than the cost of various studies being conducted and no finished report being made on them. It would to some extent be a guarantee that there would be a conclusive study done, that there would be a finished project on which there might be a report. As the section stands at the moment it is merely an enabling section. "An tÚdarás may institute and conduct studies", and then a further clause, "may publish reports on such studies", so that one might have a series of studies on which there was no evidence to which one could look.
One reason to give a discretion as to whether to publish reports in this area might be if it was felt that there was a necessity for secrecy. I do not think that this could possibly operate in education. I would hate to think that we considered that An tÚdarás might conduct private studies into higher education or research in this country which were not in the public interest. I think the Minister and all the Senators will accept that higher education and research in this country are very much matters of public interest. It is impossible to conceive of An tÚdarás instituting a study under section 13 which was not a matter which ought to be reported on. Therefore there should be this duty to report, a duty which can be enforced.
I should like again to support Senator Robinson and also speak in support of the amendment which is down in the name of Senator Kelly. I think it is better than the one which we originally framed. My concern in this—and I will not repeat any of Senator Robinson's arguments; indeed I agree with them—is on a fairly narrow focus. In the situation in which we exist at the moment in which the whole business of higher education generally is becoming increasingly complex, information is at a premium. In this situation it becomes very difficult for anybody who is not in possession of adequate information and of all the information available to make plans. I would hold that the right to make plans and proposals for higher education should not be restricted to the Government or, indeed, even to An tÚdarás. This is particularly relevant at a time in which the financial provision for the staffing of the Houses of the Oireachtas has come in for such criticism.
The point I am making is that political parties and certainly Members of the Oireachtas are entitled to the statistical information which may be gathered by An tÚdarás under this section and which should not be withheld simply because it may prove an embarrassment to the Government in power or, indeed, to any political party. I am not concerned how this information is made available, but I am concerned that it should not be kept secret. I would certainly be prepared to relax at least my opposition to the section in its present form if we got an assurance from the Minister or, better still, an amendment from him, which would establish the right of Members of the Oireachtas at least to access to the statistical information which has been assembled by An tÚdarás by the spending of public money.
I should like on behalf of Senator Kelly to put forward the second of these amendments. As far as I know this section, as it stands, is an improvement on the section as originally introduced, but I still find myself a little doubtful when I hear from the ministerial seat in Bill after Bill that there is really no point is discussing the difference between "may" and "shall" because, apparently, according to the draftsman, there is no real difference between them. Although there does not appear to be any real difference between them, it is always "may" that is put in the Bill and left in it. One would think that, if there was no real difference between them, we might get "may" 50 per cent of the time and "shall" 50 per cent of the time. If only in the interests of statistical variety I might suggest to the Minister that he might put "shall" in in this particular regard. In the amendment in the form proposed by Senator Kelly there is also included the phrase "shall as soon as may be". There is no desire here to insist on immediate publication, but the purpose of the amendment is that within a reasonable time publication should be made.
Public funds will be spent on all the activities of An tÚdarás and if it is to make these studies it is, I think, reasonable that the public and those sections of the public who are particularly interested in these problems should have the full benefit of the results. Again, it can be said that this can all be left to the discretion of An tÚdarás, that it will publish 95 per cent of the time and that the five per cent of the time they do not publish there will be good reason for it. As far as one can gather the present ad hoc HEA has shown itself determined to publish even when there were voices counselling that publication should not be made. It is probable that the final statutory body would also be in favour of publication. Nevertheless, on balance I think there is a case here that this work is so important and of such great public interest that we should, in fact, in this section not merely permit An tÚdarás to do something but we should give them a public commission to investigate these problems, giving them with due regard to their academic autonomy, a free choice of the subject of investigation but no choice to keep the results to themselves.
If this section were amended as proposed it could mean, as I have said on many occasions in the Dáil, that An tÚdarás would be obliged to publish a report on every minor investigation which it carried out and which might and could be construed as a study. We must take it that An tÚdarás can be relied upon to publish the results of every study of major or worthwhile character and that it will act in accordance with the principles and integrity to which all genuine workers in research adhere.
Nobody can suggest that the ad hoc body has been averse to publishing reports. It has, in fact, published quite a number of reports although it is only in existence a relatively short time. I do not know what voices were raised against the publication of any of the reports. Certainly mine was not one of them, but I would like to underline the fact that An tÚdarás can publish whether the Minister likes it or not. I am not sure if I understood Senator Horgan correctly when he said that political pressure might be put on them to refrain from publishing something the Government did not like. I made some reference to this in relation to its first report when I pointed out that, despite the fact that I felt a certain sum of money was sufficient to do the work and that it felt that a considerably higher sum was needed for this purpose, it published what it believed to be the correct amount. This in itself, apart from any other consideration, underlines the autonomy of An tÚdarás.
It has published quite a considerable number of reports: the first report was discussed on the Second Stage of this Bill here, there were also the teacher training report and the report on the Higher Institute of Education in Limerick. It has also furnished a report on Ballymun which will be published. If we were to make the change that is suggested here in the amendment it would mean that it would have to publish all sorts of minor matters, studies perhaps of some consequence to a direct problem but of relatively little consequence generally.
We can be assured that the new statutory body, when it is set up, will be equally anxious to make available to the public all the investigations it makes. I could not accept that we should make a change here because it would mean that An tÚdarás would have to publish every relatively minor study. I might also say, for Senator Horgan's information, that it is intended that it should publish statistical information annually.
I am grateful for that clarification from the Minister. I sympathise with the Minister's unwillingness to commit the Authority to anything enormously troublesome like this, but I see it as rather unlikely that the Authority, which is a national body operating on a national scale, should commission any studies or investigations which would not have some national relevance. It will not commission a study on the number of first art students in the year 1963, because this sort of information is already available. The sort of study which it seems to me it is likely to commission is one which will have both a local and a national relevance. I would be interested, indeed, in more information from the Minister about this statistical information which he says will be available, whether it will be available simply as an appendix to the report. What I had in mind is that the Authority should perhaps make available copies of whatever reports it may commission in the Library of the Oireachtas or elsewhere, so that at least the facts, which in themselves are neutral, would be available for people whose duty it is to study them and to make plans in relation to them.
My information is that they will publish a booklet with these statistics.
Which will be drawn from these studies that they are carrying out?
The Minister is obviously making a distinction between the meanings of "may" and "shall". That is not a foolish question.
I am aware that it is not a foolish question.
But the Minister is making a distinction here. Senator Kelly, in putting down this amendment and the amendment that goes with it intended that there would be a distinction. I do not know if there is more than one parliamentary draftsman but when the Committee Stage of the Health Bill, now the Health Act, 1970, was discussed in the Seanad in January, 1970, I was assured that "may" meant the same as "shall" and on that basis I withdrew an amendment.
I could not say in what context that definition was given.
I agree with the Minister's distinction. I did not agree with the parliamentary draftsman who, in the Health Bill, construed "may" as having the same meaning as "shall". I was told by the Minister that legally the two terms had the same meaning.
The Minister mentioned, in the course of the discussion on this section, the issuing of statistical information. I should like to ask him if he has any information in regard to this and, in particular, if he would be able to inform us whether this will be of the same type as the university statistics which used to be published by the Central Statistics Office or if the statistics will be more detailed.
The statistics will be more detailed.
Of the order of five times more detailed?
Maybe it is just that I cannot find it, but although I can find a duty on the institutions to report and give information to An tÚdarás, I cannot see a specific duty on An tÚdarás to make an annual report in which case I am wondering when this statistical information will be——
No. This is so. We did not put this obligation on them in relation to certain other types of reports but it is intended that they will produce this statistical information annually.
Would the Minister accept an amendment that the Higher Education Authority would have a duty to report annually and include the statistical information?
They have got to make a report at the end of each quinquennial period and also at such times as requested by the Minister. This provision is somewhere in the Schedule.
Yes, that is correct. It is in paragraph 21.
If they do not produce the statistics I can request them to do it.
Does the Minister guarantee to get us the statistics annually, under his powers in the Schedule?
It is intended that that will be done.
Amendment, by leave, withdrawn.
Amendment No. 18 not moved.
Section 13 agreed to.
SECTION 14.
I move amendment No. 19.
In subsection (1), line 4, to delete "such and".
I put forward this amendment on behalf of Senator Kelly. It is concerned with a point which arose on the Second Stage. 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.
I do not think there is any real point of principle between the Minister and ourselves on this matter. The Minister has indicated that the intention is that the establishment of the staff of An tÚdarás should be subject to his approval, that the number of persons to be appointed, and possibly the classes of persons to be appointed, should be matters on which An tÚdarás should have the approval of the Minister.
If An tÚdarás were to be a really autonomous body in the sense of our State-sponsored bodies, this of course would not be the condition. Nevertheless, for the purposes of the discussion of this amendment I want to leave that matter aside. What I am concerned with on this amendment is whether the phrase which is used "such and so many persons" is the most appropriate phrasing to give effect to what the Minister says his intention is. It would seem to me that this phrase could very easily be interpreted that An tÚdarás may appoint such persons as it thinks fit, subject to the approval of the Minister.
If this is not to refer to the imposition of ministerial sanction on the appointment of any particular individual, surely it would be better to use some phrase such as "An tÚdarás may appoint such classes of persons and so many persons in each class, subject to the approval of the Minister if he thinks this proper". I do not think there is any point of principle at issue here. What we are concerned with is whether in fact the phrasing here "such and so many persons" gives real effect to what the Minister wants to see in this section.
Senator Kelly, on the Second Reading of this Bill, mentioned this and so did I. I said that the word "such" was an unfortunate word, because it some minds it might refer to specific people. I am giving the Minister the benefit of the doubt in this— that what he really meant is what Senator Dooge has said; "the grades or classes of people to be appointed". It is such an ambiguous phrase in this context that I think it should be removed and some other words should be substituted for "classes or grades" of persons.
There is also another objection that I see and I referred to this also on Second Reading. Towards the end of section 14, in the last line of subsection (1) the words "from time to time thinks proper" appear. I said at the time that the phrase "from time to time" conflicted with the Minister's statements in winding up the Second Reading. He said then that it referred only to the first appointments. This phrase "from time to time" seems to me to conflict with the statements of the Minister when he was answering the debate on the Second Reading in the Dáil because "from time to time" does not mean "on the first occasion"—it means that he can at any time interfere in the appointment of the officers or servants. Those are the two points I wanted to bring out here. The Minister did not reply to me on the Second Reading here in the Seanad about my bringing out these two particular points.
I did, in fact, refer to this particular matter in replying on the Second Stage. This subsection empowers An tÚdarás to appoint such and so many persons to be officers and servants, and so on, as they from time to time think proper and to exercise that power subject to the approval of the Minister. I think I mentioned when replying to the Second Stage that "such and so many" in this legal context refers to types and numbers of posts and not to individual appointees. I am informed that it is the normal practice with regard to statutory bodies of this type that the categories or grades of posts and the number of posts to be created in the different categories or grades will be decided by the body concerned, subject to the approval of the appropriate Minister. I want to em-phasise that "such and so many" does not refer to the actual individual persons to be appointed, but to the types of posts and the number of posts of each type to be filled.
Senator Kelly's amendment would mean that, while the approval of the Minister would be required as to the number of persons to be appointed, it would not be needed in relation to the grading of the different posts, and I do not think that is logical. With regard to the second part of Senator Belton's query about "from time to time thinks fit"; this refers to An tÚdarás. It could mean that after the first appointments are made at some stage or other An tÚdarás might feel that they wanted further types or numbers of officers or servants and that they would then come to me and ask for my approval for this. It is not the Minister; it is An tÚdarás.
The Minister in the Dáil when replying said that it was only on the first appointments that he would be consulted.
There might be a misunderstanding here, because what I was concerned with there was that when the posts would be first created I would be consulted in relation to them. I would not be consulted in relation to the individuals to be appointed to those posts. In the creation of different types of posts it might be possible that An tÚdarás would feel that something new was necessary in relation to creation of the posts and they would come to me in regard to that.
If you leave out the words "so many" it does not seem to make sense, because it is "such and so many persons as An tÚdarás thinks proper". "Thinks proper" has to refer back to the number of posts and also to "such persons as it thinks proper". Without "such" it appears to give An tÚdarás no control over the type of person to be appointed, merely to the number of people to be appointed.
I am not entirely satisfied. I am quibbling about the ambiguity of the word "such".
The Minister more or less said that this has been going on and that there is a precedent, in fact. This has been going on for such a time that such a meaning is given to the word "such". The longer we perpetuate it, the more the argument will be in favour of the Minister. It is time "such" were changed. The longer it goes on the greater flexibility it will gather.
I should like the drafting of all sections and subsections in any legislation to be clear and unambiguous. The phrasing of certain legislation that we have had before us recently is such that there are lawyers around the country who could drive a horse and cart through it. It is words like "such" in this context that enables them to make their money.
If this is something that has been accepted on a number of occasions recently, I think I have every reason for putting it in. If the Senator is waiting for the time when we will be able to bring legislation through the Houses of the Oireachtas so perfect that nobody will be able to find a loophole somewhere or other in it, he will be waiting for a long time. I have pointed out that in this legal context the phrase refers to types and numbers of posts. This is to be found in a number of other Acts and therefore it cannot be interpreted in any other way.
The Minister could change it.
If I changed it I would be in trouble.
I should like to ask the Minister to consult with his colleague, the Minister for Finance, and arrange for either one or other of two types of seminars to be held—one on parliamentary drafting for legislators or, alternatively, one in plain English for parliamentary draftsmen. A burden is put upon us in the House. The fact that this has gone on and has been subject, in their own words, to an effluxion of time is no reason why we should continue in this fashion. The plain reading of this is that it refers to individuals. Yet the Minister has said what is concerned with here are posts.
I cannot see why the parliamentary draftsman could not have drafted this in some way to say that "An tÚdarás may establish such and so many posts as, subject to the approval of the Minister, it may from time to time think proper and may appoint to such posts such persons as it thinks proper". This, I feel, would be closer to the Minister's intention. I would ask the Minister to be brave in this regard. Let him go back to the draftsman and ask if this paragraph could be brought a little closer to plain meaning without danger to the constitutional fabric of the State.
I must come to the defence of the parliamentary draftsman in this case. I do not see anything wrong with this. If the draftsman wanted to do so he could spell it out in detail and say "An tÚdarás may appoint such persons as have passed certain examinations, have certain qualifications and appear in one way or other to be proper". In that sense it means "such persons as have the qualifications that are necessary" so that An tÚdarás may appoint such persons and so many of these persons as it thinks have the required qualifications.
The Minister says he does not wish to have the power of approval of disapproval of the individual appointments. This is what the point at issue is. In fact, the Minister wishes to have power over the establishment of the posts but not over the appointment of the persons. To my mind whether he exercises that power or not, the plain reading of this section is that the Minister has power over the appointment of the persons.
I cannot accept that, in the legal context, it refers to other than types and numbers of posts. If I were to interfere with the individual appointments I am certain I could be pulled up quickly on the basis of the section at present in the Bill. I have a certain amount of sympathy with Senator Dooge in relation to the use of plain English but in this particular circumstance—as this is the legal interpretation I have received—I had better stand by this. The very fact that I have interpreted it here as in the Dáil will ensure that this is the manner in which the appointments will be carried out. If any Minister—be it myself or any of my successors—were to try to interfere in a matter such as this one would not only be able to rely on the legal definition of the words but could also rely on the interpretation put on it by me here.
Amendment, by leave, withdrawn.
Section 14 agreed to.
SECTION 15.
Question proposed: "That section 15 stand part of the Bill."
On section 15, I should like to return to a point which I raised on Second Stage. While the Minister has indicated that it is an open question as to whether or not the chairman of An tÚdarás should be full-time or part-time there is a possibility that, at some time in the future there would be a full-time chairman. I take it that the chairman would not be an officer or servant and accordingly would not be covered by the superannuation scheme. In the event of a chairman serving for a long period of time would his superannuation have to be the subject of personal legislation? Also, is it the intention that An tÚdarás would be designated under the Superannuation Act, 1963—which I would call the mobility Superannuation Act— so that pension rights may be carried from the Civil Service, semi-State bodies or institutions of higher education?
In regard to the position of the chairman, would the matter of superannuation arise with regard to him?
In general, I would assume that the chairman would come from some body where he would already have had pensions rights. In that case what Senator Dooge has pointed out would apply.
My trouble is that I can see this point in regard to everyone else but the chairman. Can the chairman come under the superannuation scheme of section 15? If he comes as chairman and serves ten years his previous service would be the subject of a transfer under the Superannuation Act, 1963, but what about his service under An tÚdarás? Can the chairman come under this superannuation scheme? The real nub of the question is whether, in fact, he can be considered as part of the permanent staff under section 15 (1).
No, he cannot. If he was seconded we could make arrangements, provided a contribution were paid in order to ensure that his pension rights would continue in relation to whatever position he happened to hold previously.
The Minister is satisfied that there is authority for such payments to be made under the Act?
I am informed that it is not in here, but it has been done under general procedure.
Is it possible to do it without special legislation?
I am informed that, for example, university professors could be seconded if a contribution were made on their behalf and they would continue their pensions rights then.
My particular worry is that we might find ourselves in the situation where somebody was seconded or, indeed, might come into the post without being seconded and might not have pension rights.
In such a case if he were to enter without being seconded we would have to make some special provision for him.
The Minister is envisaging that, if there is a full-time chairman, the probability is that he would be seconded from a post within the State and that part of the secondment agreement would be that his pension, including his service with An tÚdarás, would be paid by the originating body?
Would the originating body be able to get recompense from the funds of An tÚdarás for these amounts?
There is authority for that in the Bill? I shall content myself with having raised the point and leave it with the Minister.
Question put and agreed to.
SECTION 16.
Question proposed "That section 16 stand part of the Bill."
I am a little at sea. Section 16(1) reads:
An tÚdarás may appoint a committee or person to advise it on matters relating to its functions.
The people who constitute An tÚdarás are supposed to be some of the best educated people, and I am not sure of the necessity of appointing a subcommittee to advise them on matters relating to their functions. Surely a Higher Education Authority ought to have sufficient ability without needing anybody to advise them on matters relating to their functions? If they step outside their functions, either the Minister or the institutions of higher education will soon point that out to An tÚdarás.
While I agree that An tÚdarás would consist of very highly qualified people, however, it would be physically impossible for all the members to be involved in all the investigations that they would carry out in relation to their functions. There would be matters which would best be investigated by means of advisory committees, or through the employment of expert consultants on a fee basis. Already there are two advisory committees operating under the terms of reference given to the existing ad hoc Authority. One of them is examining the question of organising a regular flow of statistical information to An tÚdarás from higher educational institutions. The data will cover students, staff, costs and so on. The committee is examining the possibility of getting these statistics in a common form from all the institutions through the computer centres in the universities and the technological colleges. They are also considering how computer centres in higher educational institutions generally might develop in the future. Another advisory committee is considering the question of the adoption of a common accounting year and a common form of accounts by all the institutions funded by An tÚdarás. The members of these committees are drawn from the universities, from technological colleges, Government Departments, An tÚdarás itself and so on. This section empowers An tÚdarás to appoint committees or persons to advise on matters of the kind described, to pay fees and allowances in respect of services.
If the Minister's statement is valid and if we are going to have these, would not they be the people to correlate all the information that I sought in the earlier amendment that I put down?
The Minister mentioned several committees, but in subsection (1) of section 16, An tÚdarás is empowered to appoint only "a committee or person". How does this relate to the Minister's statement that the ad hoc Higher Education Authority has several committees. Does the Minister intend to confine An tÚdarás to the appointment of a single committee or a single person?
That would mean that they could appoint a committee for one particular aspect of higher education and a committee for another, and so on.
That is not exactly what it says.
The Senator will agree that the meaning is quite obvious?
We shall let it go, but again it comes back to what Senator Dooge has said: that there should be a seminar for the people who are drafting these Bills.
Question put and agreed to.
SECTION 17.
Question proposed: "That section 17 stand part of the Bill".
Does "may" mean the same as "shall" here?
I see what the Senator is getting at.
Question put and agreed to.
SECTION 18.
Question proposed: "That section 18 stand part of the Bill."
"Stamp duty shall not be charged on any conveyance". Is this a new principle or it is an old one, that they are exempt from stamp duty? Section 17 refers to gifts of money, land or property which would be very valuable. They get it for nothing and are exempt from stamp duty, when they register it.
This is evidently a similar provision as is in many other Bills.
Contrast this with a parent making a gift of a site to a son or a daughter to build a new house. In that case the stamp duty is heavy.
In this instance it would be a case of the State charging itself.
Question put and agreed to.
SECTION 19.
Question proposed: "That section 19 stand part of the Bill."
Bearing in mind the experience the Minister has had with the ad hoc committee over the last couple of years, what sort of sums of money has he in mind? None of us grudges An tÚdarás the money necessary to perform its functions. However, we should be interested to know what sort of figures are involved. We should also be interested to know if this grant to An tÚdarás will find a place in the Estimates.
It will. Due to the fact that it will provide for An tÚdarás the sums necessary to defray the expenses of An tÚdarás themselves— the salaries of staff, and so on—it would not be possible at this stage for me to give an idea of what actual amounts would be involved.
Could the Minister remind us of what it has cost over the last two years?
I have not got that figure here.
Question put and agreed to.
SECTION 20.
Question proposed: "That section 20 stand part of the Bill."
This point was raised before. Would the Minister go a bit further in explaining the last two lines: "without prejudice to the validity of anything previously done thereunder"? Is this pre-empting the role of the Houses of the Oireachtas? Or is it simply a protective clause in order to ensure that no action will lie against the Authority for anything they may have done under one of these regulations? If these last two lines were omitted, there would be a premium—it would transfer the responsibility to the Oireachtas. In the present circumstances it could be as many as 21 weeks before the Seanad limit for discussing this had expired. I wonder if this is not perhaps unduly pre-emptive of the Oireachtas.
It does not pre-empt the Oireachtas. It means that if a certain thing is in operation for a period it would not be regarded as having been illegal during that period.
Is there a precedent for this sort of arrangement?
It is in all similar legislation.
Question put and agreed to.
Section 21 agreed to.
SCHEDULE.
Amendment No. 20 not moved.
I move amendment No. 21:
To add to paragraph 2 the following sub-paragraph:
"() No vacancy among the members of An tÚdarás shall remain unfilled for longer than six calendar months."
When I was making my Second Reading speech I referred to this matter and said that I would put down an amendment. This is an area in which many of the people who are in the institutions of higher education and perhaps the Higher Education Authority are interested. The section reads:
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.
It then goes on to specify certain things about the chairman of An tÚdarás. At present the ad hoc Higher Education Authority consists of 14 members. It seems likely that when the full Authority is set up under this Bill the Minister will appoint at least 14 members also.
However, I do not agree that it is wise to leave the Minister with as many as four vacant seats out of a total of 18. The Minister will plead good faith and, like Senator Kelly, I can agree with him. I am not the only person who sees in this a sort of threat to the independence of An tÚdarás. My amendment may perhaps be framed a little strictly. It is possible that an alternative amendment might read:
At no time shall there be any more than two vacancies among members of An tÚdarás.
That might be more acceptable to the Minister. I am open to suggestion on this.
To have 30 per cent or more of the membership of An tÚdarás in the gift of a Minister for Education is too great a temptation for any Minister or for any Government. If An tÚdarás, as is almost certain, crosses swords with this Minister or some other Minister for Education on any issue, it might do so in the knowledge that the Minister might be able to swing the balance by appointing people favourable to his point of view.
The origin of this sense of our needs can be traced to the circumstances in which the ad hoc Higher Education Authority was originally appointed. It was widely rumoured then, and there has been no conclusive evidence to the contrary, that the people who accepted appointment to the membership of the HEA did so on the assumption that they accepted in advance the broad outlines of Government policy towards the universities in Dublin.
I do not think that subsequent events can substantiate a charge of servility against members of the Authority. The circumstances in which these first appointments were made have definitely left a bad taste in many people's mouths. It is the sort of bad taste that could be reactivated by the suspicion that the Minister could do the same thing again. I think it only fair to point out that under other sections of this Bill the Minister has all the power he needs to remove members of the Authority, indeed too much power. It can be argued that if the Minister desires the Authority to adopt a certain course of action the onus should be directly on him, by removing members who are contrary to his point of view and appointing others in their place, to get this course of action accepted by the Authority. He should not be allowed to adopt a sort of sleight of hand method of keeping a couple of cards up his sleeve to produce them at the appropriate moment.
This is central to the independence of An tÚdarás. They would always operate under the shadow of dismissal. They should not be asked to operate also under the threat that their membership may suddenly and without warning be weighted against the concensus that operates within the Authority itself.
In my introductory statement on the Second Reading of the Bill I explained, as has been mentioned by Senator Horgan, that it is not my intention for the present to appoint the full number of 18 ordinary members to An tÚdarás. There must be seven academic members and seven members other than academic. The provision for a maximum membership of 18 in addition to the chairman has been made in the paragraph so that if at any time it were felt desirable that an additional member or members having special competence in particular fields shoul be appointed this could be done.
The existing ad hoc body consisting of a chairman and 14 ordinary members has functioned very satisfactorily and has done remarkably good work. I was not Minister when they were appointed but I am informed that it is not true that the present members were appointed because they accepted the Government view regarding the Dublin university position. I do not know what their attitude was towards it at the time. They have, since their appointment, shown themselves to be very independent people.
An tÚdarás has done remarkably good work and I am not convinced that its efficiency would necessarily be enhanced and its achievements improved if the membership were bigger. Having considered this matter very carefully I thought it would be well to increase the potential membership of the statutory body to 18 to provide for the contingency I have mentioned. The Senator suggested that this might be used so that the Minister could add members to the authority to enforce his own viewpoint.
The Senator suggested that it might be better, if the Minister wished to enforce his viewpoint, that he could remove members who did not agree with him. I would not accept that the Minister should make changes simply to get his own point of view across. I am not prepared to agree that there should be a statutory obligation to appoint the full quota of 18, as this is what the acceptance of this amendment would mean in effect. On the other hand, if I had only 14 members the onus would be on me, in accordance with the Act, to fill a vacancy as soon as possible.
Would the Minister not accept that the contingency situations to which he refers can be very adequately dealt with under section 16 (1) and (2) of the Bill. As I said earlier, perhaps it was a bit much to insist on every vacancy being filled within six months. If there were even a statutory duty on the Minister to fill at least 17 of the 18 places, this would give some flexibility and quite enough so far as I am concerned.
Section 16 (1) relates to committees. While there is some validity in what the Senator states it would not meet the situation I have in mind.
Two separate points arise out of amendment No. 21. There is the question of increasing the complement from 14 to 18. The Minister has stated there is provision for 18 members on this Authority but he intends to appoint only 14 at the start. The question arises how much time is he giving himself to bring the complement up to 18. Is it to be an indefinite period? What may be more pertinent to the amendment under the names of Senators Horgan and Robinson is this: of the 14 the Minister is initially appointing, supposing vacancies occur among those 14? The reason for appointing seven academic members is to maintain a certain equilibrium between academics and others on this body. If the academic representation, either due to death, retirement, dismissal or some other reason, is reduced to six, then disequilibrium will occur on this board. That should not be allowed to continue indefinitely.
Senator Horgan mentioned six months and said he was aiming at a fixed time if the Minister would agree. The Minister should have a fixed time in mind when the number would be brought up again to 14. A fixed time should be inserted there. The vacancy should not be left indefinitely.
As I mentioned earlier if I had the 14 members only, the onus would be on me, in accordance with the Act, to fill the vacancy as soon as possible and I would anticipate the filling of the vacancy, in such circumstances, very much more quickly than within six months.
The subsection states "of whom at least seven shall be academic members and at least seven shall be other than academic members". Do I understand, and I hope I do, that at no stage shall the Authority fall below 14?
Yes. I have pointed out that, if a vacancy occurs and there are only 14 members of the Authority, I would anticipate filling the vacancy much sooner than within the time specified by the Senator. I would feel that the onus was on me to fill it almost immediately.
Can the Minister give us any indication as to how many of the four seats he intends to fill? It would be rather unnerving, to say the least, for 14 good men on the Authority to be looking at four empty chairs every time they sat to have a discussion.
I doubt very much if that would unnerve them. I cannot say just now when I would fill them, but I feel that from time to time we could come across some person who would have a considerable amount to contribute to the workings of An tÚdarás and that I should leave myself the opportunity of filling that position.
One final question: is it envisaged that the members of An tÚdarás shall be all Irish or does no such restriction apply?
Amendment, by leave, withdrawn.
I move amendment No. 22.
To add to paragraph 2 the following sub-paragraph:
"() No more than two academic members of An tÚdarás shall be drawn from the staff of any existing institution of higher education."
I move this amendment with some hesitation because, like the Minister, I believe strongly that although people should be appointed to An tÚdarás to represent broad areas of interest, they should not be appointed to represent individual institutions or organisations. I will even go so far as to say that this amendment, if it were accepted, might have the affect of encouraging the wrong kind of representative frame of mind among members of An tÚdarás.
There is a political problem that the various institutions of higher education are in a political relationship with each other and the credibility of an tÚdarás is to some extent weakened if it is thought that any particular institution has an over-weaning influence in An tÚdarás. Therefore, I have drafted this amendment, not to introduce the principle of representation into the Bill but to ensure equitable distribution geographically if no other way, among the members of An tÚdarás and to make it a more nationally-minded organisation.
I must say I was rather surprised to see this amendment coming from Senator Horgan, because he agreed with my attitude towards this particular body that it should be unrepresentative. I feel that this amendment would place a restriction on the Government as to the range of persons from which the academic members might be selected.
I do not think it is necessary for me to state again that the criterion for membership of An tÚdarás should be, and will be as far as the present Government are concerned, the contribution that the individual is likely to make to the work of An tÚdarás having regard to his experience, his knowledge and his ability. This criterion will apply in the selection of those who are academic members as well as those members who are other than academic. I would not be prepared to accept an amendment which would in any way restrict the range of selection and would debar from membership, for reasons which in my view are not relevant to the work of An tÚdarás, persons who might be eminently suitable and desirable as members.
The proposed amendment in a sense would seem to imply—I know that this is not the intention of the Senator— that the academics could not be trusted to act in an objective and unbiased manner as members of An tÚdarás, that they would be influenced by their connections with particular institutions of higher education. This I do not believe and I must say that my experience of the work of the members of the ad hoc body confirms this view.
Amendment, by leave, withdrawn.
Amendment No. 23 not moved.
May I intervene to say it is proposed to sit later than 5 p.m. to finish the business on the Order Paper?
Are we to have an interval?
It might not be necessary. I am an optimist.
Not as much an optimist as this morning.
I did not bargain for 2½ hours for one amendment.
Amendment No. 25 is an alternative to amendment No. 24 and the two can be discussed together.
I have no objection to that. I move amendment No. 24:
To delete sub-paragraph 6 (1), lines 15 and 16 and substitute:
"() The Government, with the prior consent of An tÚdarás, may remove the Chairman or an ordinary member of An tÚdarás from office."
I am distressed at this paragraph in its present form and I know that many people who are by no means opponents of Government policy, who include many Government supporters in the university, are equally distressed by it. Its import is clear as indeed is the import of the amendment.
We have here a straight clash between two ideas. I can see from the Minister's point of view that he has to maintain some ultimate form of sanction on the control of higher education in this country but it seems to me that to exercise this sanction in terms of membership and personnel of the Authority itself is a very wrong way of doing it. The sanction that is exercised by any Minister for Education on the control of any sector of the education system in this country is ultimately that sanction which is exercised by the Government through the Houses of the Oireachtas. I do not see any reason for the introduction of such a provision into the Bill as is here introduced.
There are two possible motivations behind this of which I would prefer to believe the more innocent one. The more innocent one is just that the Minister has decided to keep all power in his hands for as long as possible. There is also the malicious interpretation of the facts in that this proviso is yet another instance of the creeping authoritarianism that I referred to earlier, of the unwillingness of the Government to trust people, to put it in no more complicated language.
I am not as well instructed as I might be in the sort of arrangements that exist for the University Grants Council in Britain but I would doubt very much that they are as draconian as this. I would be very interested to hear if the Minister can supply any precedents for his action in this section, not in Irish legislation because we have not had any Irish legislation to do with our higher education for quite a long time, but in comparable legislation in other countries. It is quite possible that the Minister may retain this power with regard to the chairman and members of the Pigs and Bacon Commission or this or that other body, but I doubt very much that he retains it in connection with the board members, for instance, of Bord Fáilte. Even if he did, I would not regard this as an adequate precedent for the principle that is introduced in this Bill. I should be interested to hear where there is any other precedent in educational legislation of a comparable nature in any other country for this practice.
I should like to urge the Minister to consider softening this paragraph. The Minister has on quite a few occasions yesterday and today resisted amendments on the grounds of the reasonableness of the persons who would constitute An tÚdarás. He has told us repeatedly it would be unthinkable that reasonable people such as the members of An tÚdarás would do this or that. He appears in this part of the Bill to have suddenly lost his confidence in the reasonableness of the members of the Authority. He appears to wish to give himself power here to remove members of An tÚdarás in bulk because that is the only real difference between the original proposition and the amendment.
The Minister said in his reply on the Second Stage that the situation might arise that any member of An tÚdarás would become so unreasonable, so obstructive that he was a distinct hindrance to the work of the Authority. If that is so, surely nobody would recognise this more clearly than his fellow-members, because nobody would suffer from it more sharply than his fellow-members. If this situation did occur the Minister should have no difficulty in getting the concurrence of the other members of An tÚdarás in the removal of this obstructive member.
I think the Minister has in his original version taken far too wide a power in this regard. If such a power is necessary —I do not wish to concede that—then surely it is a power which should only be exercised when a member is grossly inefficient, or grossly obstructive, or acting or not acting in a particular way, so as to be a distinct hindrance to the good work of the Authority. No body of people recognise this more clearly than the members of the Authority who have remained reasonable.
Is it not putting rather a lot of responsibility, in an unpleasant situation, on the members of An tÚdarás to have to have a vote on this kind of situation? I do not think that the future members will thank the Seanad for making an amendment placing on them the decision of removing one of their own members. It seems to me that they would much prefer that the Minister would take that responsibility himself. As the Minister has the responsibility for putting the member on the board, it is his responsibility, after consultation with the chairman, to take him off. It is something that the members should not be asked to do. They are not responsible, were not responsible for putting the man there, and should not have to take the responsibility of voting for or against the proposition to remove him as a member of An tÚdarás. It is not part of the obligation they undertook in acting on this board and I do not think it is the kind of obligation that should be placed on them.
I agree with Senator Ryan that the onus of dismissing members of An tÚdarás should not be on the members of An tÚdarás. Following on this, it seems to me that perhaps it might be sensible if, in the opinion of the majority of the members of An tÚdarás, any member, including the chairman, ceased to be a member of An tÚdarás, this should be certified to the Minister by An tÚdarás and that the Minister should be free either to accept or to reject this advice. This puts the final onus on the Minister.
If the members of An tÚdarás feel strongly about somebody the Minister proposes to take off, feel that the Minister is acting improperly or that the man in question was merely taking a strong line on something that he felt strongly about, the members of An tÚdarás have a very good way of expressing their disapproval. They can tell the Minister that if this man is taken off they are resigning. That is quite sufficient sanction to deal with that kind of thing.
Senator E. Ryan has made the case here in relation to these amendments. I should also like to add that the first and most important aspect of this amendment is that it would place the Government in what would be tantamount to being in a subservient position to An tÚdarás. That is a situation which of course no democratic government could accept. If members of An tÚdarás are appointed by the Government, as provided for in subparagraph 3(1) of the Schedule in the case of the chairman and subparagraph 4(1) in the case of ordinary members, then it is surely logical that the Government should have the authority to remove them from office.
Senator Kelly's amendment is very similar to that put forward by Senator Robinson and Senator Horgan except that it is slightly different in wording. But it would mean that the Government, having appointed the members of An tÚdarás, could not remove any member for any reason whatsoever unless An tÚdarás concurred in his removal. It would in this respect mean that the Government could not act on their own decision without the consent or concurrence of a statutory body of their own creation. I feel that such a situation would be a negation of the principles of democratically elected Government. For these reasons, as well as for the points put forward by Senator Ryan, I could not accept these amendments.
I do not think the Minister is right in saying that this is a negation of democracy. We have a particular form of democracy in this country. The form of democracy under which the Government are appointed is that they are elected at a general election and then allowed a certain term to prove themselves before they again come before the people. The same situation would exist if there were no right of removal at all of members of An tÚdarás. They would be appointed by the Minister and judged, not on part of a term, but on their performance over a full term. There have been democrats, from the Chartists down to Sun Yat Sen, who held that there was no true democracy without the right of recall of a member at any time. It is the right of recall which the Minister is seeking to impose here. It is something which is not present in our ordinary democratic usages and I do not see why it should be imposed here in this particular regard. I do not think it derogates anything from the authority of the Government that they should have to have the concurrence of the majority of members in coming to the conclusion that an individual, who, within a period of five years, had been thought by them to be eminently suitable for membership of An tÚdarás, is no longer so. The only thing that can have changed in that period is the way in which this person carries out his duty. The people who know that best are the other members who have been members of the Authority with the person under discussion.
There was one question which I asked the Minister in connection with the practice which is followed in the University Grants Committee in Britain. Has he examined this and has he seen any reason to depart from it? What does he think of it generally?
I have not any information on that particular aspect but I feel I have adopted the right attitude here.
Amendment, by leave, withdrawn.
I move amendment No. 25:
In paragraph 6, lines 15 and 16, to delete "after consultation with the chairman of an tÚdarás"; and after "may" in line 16 to insert ", with the concurrence of an tÚdarás,".—
Amendment put and declared lost.
I move amendment No. 26:
In paragraph 10, line 31, to delete "seventy" and substitute "sixth-five".
This is a very simple and obvious amendment. It seems to me in a Bill of this kind, the establishment of a body such as An tÚdarás um Ard Oideachas, that you either have an age limit with teeth or you simply do not have one at all. It seems to me that the age limit of 70 is not one with teeth. I would not think that 65 has got very much more than a good set of dentures, but at least it is an improvement. Education at the moment is not only changing rapidly in itself, but the rate of change is increasing in geometric progression.
I would seriously urge that the age limit be lowered to 65. This is no great reflection on the over 65's but it is meant to ensure that the persons on the Authority are people who will be in a position to cope adequately with the presumably many demands that will be made on them. There is the additional difficulty that in this country, especially as people leave middle age and head towards the 60's and 70's, they tend to acquire directorships and all sorts of ancillary obligations which prepare them quite adequately for a very well-cushioned retirement. In a sense the ancillary, and to some extent, honorary functions, which people acquire as they grow older could inhibit their functions as a member of a body as exacting as An tÚdarás. Indeed, this is especially so when we add to this the reflection that, quite simply, their physical powers may be waning. I would ask the Minister whether the introduction of the word "seventy" here is simply in line with other legislative instruments of this kind and, even if it is, whether he would not consider that the special demands of An tÚdarás would make 65 a better age limit.
One very heavy responsibility in this country is that of a High Court judge or a Supreme Court judge. The Supreme Court judges have even from time to time to review the legislation of this House and see whether it is within the provisions of the Constitution. They are considered quite competent to do all their work up to the age of 70; they are considered to have the maturity. In fact, usually they are at their peak at 65 in many cases. I think to be limited to 65 years of age for An tÚdarás would be unnecessarily delimiting and perhaps, on occasion, excluding somebody who would be eminently suitable.
The obvious reply to that is that members of the Supreme Court are full-time members of the Supreme Court. I doubt if it is in the minds of the Government that all the members of An tÚdarás should be whole-time members. I am concerned about the occupational structure of men over 60 in public life in this country who, in many cases, have a vast number of occupations. I just wonder whether in these circumstances, which are quite distinct from the circumstances of the judges of the Supreme Court who do nothing else and who may in fact in some cases not be doing enough, the two cases can be sharply distinguished.
I should like to have seen more of the professors in here because I should like to ask them if they would be prepared to relinguish their professorships at 65. I do not think we should have an age limit of 65, because many of the people who have been appointed recently are quite bright and can only be on for ten years. I should think that when the Minister is appointing members he would take the health aspect into account. If a man of 65 is healthy and has the necessary experience he should be allowed to go on. I think most professors continue on for quite a while too. There are not that many people in the country who are in a position to be appointed or have the ability to be appointed to An tÚdarás and we should hold them as long as we can. I think 70 is a very reasonable age.
I might say, first of all, that I was rather intrigued when I saw the original source of this amendment. We had it in the Dáil as well as in this House. I had also seen it previous to that. I should like to say to Senator Horgan when he asks what I had in mind in regard to the age of 70, the answer is that, although the age of retirement for university academics starts at 65, in fact they are usually retained on extension to the age of 70. This was one of the matters I had in mind when I fixed the age of 70.
I think there is no reason to believe that persons who have been appointed to An tÚdarás because of their knowledge, experience and ability in the first instance, would lose effectiveness after the age of 65. In the present day and age it is accepted that people are not regarded as particularly old at 65 or at 70. It is also true to say that individuals differ and some people are old at 50 and others are young at 80. Senator Crinion has said it will not be an easy matter to get an individual who will fit this particular position. For that reason I feel that a man who is appointed because of his knowledge, experience and ability should be retained to the age of 70.
Amendment put and declared lost.
I move amendment No. 27:
In page 7 to add to paragraph 16 the following:
"; provided however that no question shall be so determined if the minority of the votes consist of or include the votes of all the academic members of an tÚdarás".
We are concerned here with seven people who are members of a larger body, namely the academic members of the Higher Education Authority. I suppose one could say "Where you have seven Irishmen together you are liable to get seven opinions". Most Members of the House would probably say that where you have got seven Irish academics together you would get 14 opinions. What we are concerned with here is the unusual circumstances in which we would have seven Irish academics who were absolutely united in their opinion.
Some regard should be had to miracles of this sort. If you get this situation there would have to be a remarkably strong reason that would unite these people together. It is common knowledge that academics are individualistic people, and this is quite proper. They are people who are, in a way, always eccentric because they have decided to devote their lives to one particular subject and they believe that this is the most important thing there is. When you get a group such as these absolutely firm on one idea, then there must be some underlying principle that transcends all their interests and transcends all their discipline. What this amendment asks for is that some recognition should be given for this. This amendment is not put forward with any sort of notion that this is something that would happen regularly. It might never happen.
One would hope that, even though there is full provision here in the Schedule for the way in which An tÚdarás would vote and the way in which the chairman would give, if necessary, a casting vote, An tÚdarás would rarely vote, rarely decide issues by counting heads. If this body is to be an effective body and do the job it is charged with doing, then it will only do this by studying the facts and coming to a measure of agreement on what should be done. I would hope that voting would be rare in An tÚdarás and it would be rarer still that you would have in An tÚdarás a situation where all seven academics were outvoted on a particular issue. It is these most rare circumstances among the rare that is the subject of this amendment.
Would the Senator consider that if the seven in the minority were all non-academic members the same should apply?
Would the Senator care to put down an amendment to that effect?
Quite apart from the fact that I do not agree with this, it seems this amendment leaves a question mark. It merely says "provided however that no question shall be so determined". In that case how is it to be determined? The paragraph states that it will be determined by a majority and this merely says that it shall not be so determined. This leaves the position with the question mark that there is no means of determining the question where all the academics are on one side.
If the proposer of this amendment, possibly infected by the systems which exist in the European Community of weighted votes and so on, had proposed some workable alternative of determining the question if the way in which it is proposed in the Bill is not acceptable to him, then at least it would make sense. Merely to say that it shall not be so determined and, in fact, that it shall not be capable of being determined at all, is surely a very unsatisfactory position. In any event, I see no reason why this should be introduced. I think it is tantamount to saying that the intelligence and good judgment of the non-academics is not of the same calibre as that of the academics. It is tantamount to saying what some motor car advertisement of some time ago said: "This seven is better than any other ten." Why should you say that the seven votes of the academics are better than the remaining 11 votes? I do not think that any self-respecting person would act on An tÚdarás if he was faced with the situation that he could be outvoted by a minority.
When replying to the Second Reading debate on this Bill I replied to this matter which was raised by Senator Kelly. He spoke of the academic members of An tÚdarás, when voting together on a particular matter, as constituting what he called a qualified majority even though they would be in a numerical minority of those voting. This amendment is designed to give legal force to that concept of a qualified majority. What, in fact, the amendment proposes is that when all the academic members vote in a particular way they would carry whatever proposition was being voted on, no matter how votes were cast on the opposite side. This, of course, would mean, as I said in my reply to the Second Stage debate, that if the academic members decided to form a bloc, either permanently or on a particular issue, they could, literally, disfranchise and render powerless the other members of An tÚdarás. This is a proposal which, in my view, conflicts violently with democratic principles and as such I could not accept it.
As all members of An tÚdarás will be selected for appointment on the basis of their experience and ability it would be somewhat of an insult to the non-academic members that they should be, as it were, lower grade members of An tÚdarás than their academic colleagues As Senator Ryan has said, I could not imagine the other members of An tÚdarás accepting membership on this basis. I would hope that, as I have mentioned in my reply on the Second Reading debate, An tÚdarás would not form themselves into blocs of academic and non-academic members. Accordingly, I feel from all the points I have put forward that I could not possibly accept this amendment.
I should like to support the Minister in this. When I first saw the amendment I felt some sympathy with it, but on reflection, my sympathy rapidly dwindled and evaporated. Such an amendment would, if accepted encourage the seven academic members to act as a bloc. This is very far from the Minister's intention in appointing them to represent a certain section of the community, namely the academic section.
What really turned me against this amendment were the words "or include". While it might be arguable that the Authority which was set up, basically, to look after institutions of higher education should not take a certain course of action against the united opposition of people from those institutions who are on the Authority, the idea that the inclusion of the votes of those members against a simple majority should negative that majority seems to me to be quite unsustainable The simplest reason of all why this amendment can be opposed is that it basically, does not make any sense.
Academic members of An tÚdarás, in a sense, shed some of their academic aura once they are appointed. They are appointed because they are academics but, once they are appointed, they become full members of An tÚdarás. It would make just as much sense to introduce amendments stating that "No question shall be so determined if the minority of the votes consist of or include the votes of all the Catholics of An tÚdarás" or "the votes of all the left-handed members of An tÚdarás" or "the votes of winkle pickers of An tÚdarás". I do not agree with setting up bloc divisions within An tÚdarás on this basis.
I am amazed to see an amendment like this coming from a Member of a House of Parliament where we depend solely on the majority vote. If we had this in our own Constitution it would mean that, if all the members of Fine Gael or the Labour Party voted against anything, we could not have a decision. As Senator Horgan said, it would tend to get people into a bloc and they would control everything. In doing so you would be taking control away from An tÚdarás and getting completely away from the democratic principle which has been accepted in every committee, board and organisation in the country. It would be even more amazing coming from the Parliament of any country. I am astonished to find a Member of a House of our Parliament putting forward an amendment like this which implies that the majority vote does not count.
Amendment, by leave, withdrawn.
I move amendment No. 28:
In sub-paragraph 20 (1) to delete lines 26, 27 and 28.
The last three lines in the section seem to me to be unusually sinister in their implication. I may be very wrong about this, and I would be delighted if the Minister would reassure me on it. This section, as presently framed, introduces the idea that the authorities of the various institutions of higher education can be made accountable for every penny they spent, not only to An tÚdarás but, in a sense, to the Minister for Education and even to the Minister for Finance. I fail to see why the legislation which is laid down in the first four lines of this section, which seem to me to be quite adequate, should be extended to give the Minister for Education and the Minister for Finance, combined, such arbitrary power of direction of the institutions of higher education. I shall be interested to hear the Minister's justification for this.
I should like very much to support this. Senator Horgan has said that the first four lines cover what is necessary in this paragraph of the Schedule. The addition of these words —the words he wishes to omit from this in his amendment—seem to be sinister. I am not referring here to any particular person. The paragraph reads: ...shall keep in such form as aforesaid all such special accounts as the Minister, on his own motion, or at the request of the Minister for Finance, may from time to time direct." In other words, it means that, in addition to doing what is correctly set out in the first four lines of paragraph 20, the Minister may request An tÚdarás to keep accounts in a special way even though they have kept accounts in the normal practice as set out in the first four lines. I do not like the last three lines of paragraph 20 and I agree thoroughly with Senator Horgan that they should be deleted.
Senator Horgan and Senator Belton know very well that the shareholders of companies get what purport to be balance sheets in accounts. They disclose very little, so little as to be practically negative in their effect. If one wanted to know how money was being expended, one would have to see the actual audited account, which is a completely different thing. These are the sort of accounts that are provided for here. Not only must they keep the income and expenditure account and the balance sheet, but they must also keep such special accounts as he requires. That is to say that he can provide that the audited accounts be kept, which deal with the various aspects, and that they can be submitted to him, and they must be submitted in such form as he requires. Otherwise, he would not have the faintest idea how millions of taxpayers' money is being spent and if it is being spent to advantage. If he is asked to explain to either Houses of the Oireachtas, he could not possibly do so, nor could he stand over it and say: "I, personally, as Minister for Education, am satisfied that the taxpayers are getting good value for their money and we, as the Government, stand over it, and stand over this expenditure and accept full responsibility for it."
Is this not covered? It says "An tÚdarás shall keep in such form and as may be approved by the Minister, with the concurrence of the Minister for Finance." Does that not cover that?
No. It is only an income and expenditure account and a balance sheet that is required.
All proper and usual accounts of all moneys received and expended, including the ones cited. It is not limited to those.
Including an income and expenditure account and balance sheet.
Let me assure Senator Horgan and Senator Belton that there is nothing sinister in these particular lines of the section. The lines in question provide that An tÚdarás, in addition to keeping all proper and usual accounts of all moneys received and expended by it, shall in particular keep in such form as aforesaid all such special accounts as the Minister, on his own motion, or at the request of Finance, may from time to time direct.
This is a requirement which is laid down in similar forms in the enactments relating to other statutory bodies. I have a list of them here. For example, An Chomhairle Oiliúna, under the Industrial Training Act, 1967; Córas Iompair Éireann, under the Transport Act, 1950; the Radio Éireann Authority, under the Broadcasting Authority Act, 1960; the National Building Agency, under the National Building Agency Act, 1963. There are other examples, but it is not necessary to give an exhaustive list.
I do not see how anyone could read anything unreasonable into this requirement. It is obviously desirable that, in the case of bodies which receive all or the greater portion of their income from public funds, the responsible Minister, or the Minister for Finance should be in a position to require, if necessary, that the accounts should be kept in such form as would give to the Oireachtas the fullest information which is desirable. This provision would place no restriction on An tÚdarás in the performance of its functions. No reasonable Minister would operate this subsection in such a manner as to place unnecessary or unreasonable or restrictive burdens on An tÚdarás.
We are back again with our friend "reasonable Minister". I should like the Minister to give An tÚdarás some indication of any special accounts that he has in mind, if he is able to do so at this stage.
Evidently this must be inserted so that the Minister will be able to insist that the information will be supplied in a form which will satisfy the Comptroller and Auditor General.
But surely that is covered in the first four lines?
The draftsman does not accept that it is.
It says in the first four lines: "in the form that may be approved by the Minister, with the concurrence of the Minister for Finance".
"All proper and usual". Under the last three lines, does the Minister intend to look for accounts that are either improper or unusual?
What could readily happen is that members of the Dáil would raise questions requiring certain details of financial information which might not be in the proper and usual accounts. If Deputies raise questions they are entitled to have an answer and to know how the taxpayers' money is spent. Surely it is not unreasonable to expect that, if these questions have to be answered, the Minister, from time to time, may say that he wants those special accounts as well.
Even that is covered in the first four lines.
If the Comptroller and Auditor General wishes to have information which is not supplied in the usual form, then the Minister must be in a position to be able to get that information for him and make it available to him.
If the Comptroller and Auditor General requires this, we should accept it.
Yes. We are not objecting to this. It is covered by the first four lines—that is the point at issue: "and shall keep in such form as may be approved by the Minister with the concurrence of the Minister for Finance". If the form he suggests initially is not satisfactory, I presume that he could tell them the following year that he requires them in such-and-such a form.
Suppose that in that particular year the Comptroller and Auditor General looks for certain information which is not made available in that particular form, then the Minister must be in a position to ensure that the information is made available.
All this is covered in the first four lines.
It is obviously a necessary part of the section, because it is included in a considerable number of other pieces of legislation, and I am sure it was done because it was necessary.
That does not prove that it is correct.
Has the Minister any information about the number of times the appropriate Minister has requested accounts under the provision which is included in the last three lines?
No, I have not such information. The Senator can be assured that this section was drafted in the same way as similar sections were drafted in other Bills.
Amendment, by leave, withdrawn.
I move amendment No. 29:
In paragraph 23, to insert after "proper", line 51, the following:
"(not being the function of making payments, or of determining the manner or conditions of such payments, under section 12, subsection (2) of this Act)".
The purpose of this amendment is to ensure that in delegating its functions to its officers and servants An tÚdarás does not delegate certain functions which should properly be exercised only by them as an Authority.
One finds in legislation, from time to time, provisions which restrict the Minister to acting in his personal capacity under his personal seal as against the exercise of his general functions which under the Ministers and Secretaries Act can be exercised on his behalf by an officer who has been deputed to do so.
Here I am appealing to precedent which the Minister has not hesitated to do throughout the discussions today, in regard to decisions made by the acts of Ministers. The functions of making payments, of deciding the amounts which will be given to various institutions of higher education, of determining the manner or conditions of these particular payments are matters of such prime importance and of such central concern to the Authority's functions that they should not be delegated to an officer or servant.
Section 23 of the Schedule appears in the Bill in order that An tÚdarás may be empowered to delegate day-to-day tasks to a member or members of their staff. There could be no question of An tÚdarás extending delegation of this type to cover any of their major functions. This is a normal type of provision in legislation relating to statutory organisations.
In this amendment Senator Kelly wishes to ensure that An tÚdarás will not authorise any of their officers or servants to make payments or to determine the manner or condition of such payments under section 12 (2) of this Bill. As I have pointed out, there could be no question of An tÚdarás delegating any of their powers in relation to their major functions. The trouble about specifying what may not be done under a provision of this kind is that you imply that what is not specifically prohibited may and perhaps should be done. If this amendment were to be adopted there would be a definite implication that An tÚdarás could or should delegate the performance of others of their important functions to members of their staff. Again, I emphasise that we must accept that An tÚdarás will be a responsible body.
I think the Minister is pushing the principle of implication much too far in this instance. We appear to agree that it would not be proper for An tÚdarás to delegate the things which this amendment would prohibit it to delegate. The Minister appears to be saying that because there may be other things which An tÚdarás should not delegate we should not specify these particular ones.
Earlier in the debate Senator Brugha mentioned that section 12 was the kernel of this Bill. That is why this section and the functions under it have been highlighted in this amendment. This section stands out so much as a among the actual specific functions, apart from the general functions, of An tÚdarás, that it is proper to make this specification.
As I pointed out to the Senator apart from the original arguments I made against the amendment, the trouble about specifying what may not be done implies that other things are not specifically prohibited and therefore may be done. I have given other reasons why I cannot accept it.
Amendment put and declared lost.
I move amendment No. 30:
To add to paragraph 23 the following: "and may at any time revoke any such authorisation."
This was put down in case it is necessary for the removal of doubt. The paragraph, as it stands, says that An tÚdarás may authorise any of its officers or servants to do something. It is clearly implied, beyond any legal doubt, that authorisation of somebody to do something includes the power to revoke this order. If the Minister can assure me that he is advised on this point then there is no need for this amendment, but it has been put down for the purpose of having the point clarified. One wishes to guard against the danger that a delegation might be made to an officer of An tÚdarás who would then claim that this function had been delegated to him and that there was no power of revocation.
My information is that any body which authorises anybody to do any act on their behalf can withdraw that authorisation at any time they wish.
Amendment, by leave, withdrawn.
Question proposed: "That the Schedule be the Schedule to the Bill."
The first point I want to raise on the Schedule is on paragraph 2. It is tied in with section 1 of the Bill and some of the points which I raised then are relevant to paragraph 2 of the Schedule.
In discussing the definition of an academic post I mentioned that the position was that the Minister had intruded among the members of the ad hoc Authority such registrars of university institutions as were available for appointment at that time. I made the suggestion that these people had been appointed on what was virtually an ex officio basis. The Minister contended that they had been appointed as being the best people available among all those who were available to serve. I find this difficult to accept. The coincidence that among all those who were available should turn up all three available registrars is stretching it a bit too far. The Minister is apparently convinced that they were among the best available people. These people who are part-academics, part-administrators, have now served on this body for a number of years and it is quite natural for the Minister to think they are now even more highly qualified to be members of the Authority. I wonder how many people among the seven academic members who are authorised here under paragraph 2 of the Schedule are going to be people holding academic staff positions in a full-time capacity, whose whole lives are devoted to academic subjects.
The Minister, in the course of the discussions on this Bill, rejected the idea of making a separate category of student members but did not rule out the possibility of nominating students as members of the Authority. It was pointed out that it was quite likely in this instance that these students might be post-graduate students. Virtually all post-graduate students hold a post of research demonstrator or some such type of post from the university. This is a post part of the duties of which are the carrying out of research and the giving of instruction to students. Accordingly, if the Minister is to appoint students to the Higher Education Authority, it would appear that these students, if they held research demonstratorships from the university, even though the sums involved might be small, because of the wide definition in section 1, these students would have to be counted among the academic members, if the Minister is appointing an Authority of only 14.
We might well end up here with the academic half of this team of 14 consisting, on the one hand, of people who have passed from full-time academic commitment to university administration and, on the other hand, of student representatives who are still in apprenticeship to the academic life.
They would have to be employed.
They are employed by the college. My post-graduate students doing a master's degree are receiving grants from the Department of Education and are also employed as research demonstrators in the college working six hours per week, with the full permission of the Department of Education. As such they could well come under the definition of holding an academic post unless we either make an exclusion of them in paragraph 2 of the Schedule or make an adjustment to the definition of "academic post" in section 1 of the Bill. I raise this point because, due to the particular definition which is now in the Bill and which the Minister is not willing to amend, there may be real difficulty in maintaining a true balance in accordance with what was the original intention of paragraph 2 of the Schedule.
I should like to repeat what I have stated in replying to the Second Stage debate, that the registrars of the universities are not appointed in an ex officio capacity. They were appointed for the same reasons as the other members, because of their experience, their expertise, knowledge, personal qualities, etc. I do not want this to be taken as a precedent, but it could be said that they had both academic and administrative experience which would make them suitable for inclusion in a body such as An tÚdarás.
With regard to the question of the students, I have already pointed out, and I think this was accepted by most Members of the House, that we did not intend including students in any capacity as academic members. During my reply to the debate on the question of the admission of students to membership of An tÚdarás, I pointed out that if they were, at some future date appointed to An tÚdarás, it would be those who are not from the academic side, either the seven non-academics or to the four places which remain to be filled after we have set up this body statutorily.
On the latter point my argument was that, in regard to students who are post-graduate students, the Minister would not be entitled to appoint them as non-academic members, because a non-academic member is defined as a person who does not hold an academic post, part of the duties of which are to teach any students in the institution or to carry out research. My point is that the holders of research demonstrator posts and minor assistantships in the universities would, by definition, under this Bill qualify as academic members. Unless the Minister makes them part of his floating four he will not be able to make them two of his non-academic seven.
I cannot argue with the Senator on this matter because I have not sufficient knowledge to do so. If it were the intention to appoint a student he could be appointed to one of the four places that remain. I do not, at this stage, intend appointing students. If I changed my mind, or if some future Minister did, it would be possible to do so.
If the Minister did change his mind on this I take it that he would take care not to appoint them at the expense of the seven academic members?
Yes. I have already pointed this out.
Am I right in thinking that this is the first time the Minister has explicitly stated that it is not his intention at the present time to appoint students?
No, it is not. In fact, I pointed out that in my speech: that I did not feel that this was the type of body on which the students should be appointed. I feel they would not have as much to contribute as they would quite obviously have in relation to governing bodies of universities. I also said that if I should change my mind in the future, or some other Minister who would succeed me decided to appoint students, there was nothing in the section which would prevent this.
I should like to ask the Minister a question about section 21 of the Schedule. It is provided that An tÚdarás shall report every five years, which seems a very long period in relation to its functions, or sooner and as often as the Minister may direct. Does the Minister intend to ask An tÚdarás to report more often than every five years and will he ask it to report in relation to each of its general functions? Is there not to some extent the possibility that the Minister may call the tune here too, if he asks them to report within six months in relation to a particular activity? Is this not guaranteeing that that activity will be researched during that period at the expense of others. I am not sure what the relationship would be under that section at all.
Section 21 states:
An tÚdarás shall, at the end of each quinquennium or at such other time or times as the Minister may direct, make a report to the Minister of its proceedings under this Act during the preceding quinquennium or during whatever other period the Minister may appoint.
What I had in mind was that it would report to me at the mid-stage of the quinquennium, say, after 2½ years. I feel also that they would make some report in connection with what Senator Horgan raised earlier in relation to the statistical matter each year. If, for any reason, I felt that I needed a report about something I could always ask to have that report. They would also report at the end of the quinquennium and at that stage, or possibly sometime prior to that, put forward their proposals for a further five year period.
I thank the Minister for that information. I note, happily, that copies of such reports should be laid before the Houses of the Oireachtas. Perhaps a similar practice could grow up in relation to any studies under section 13. If they could also be laid before the Houses of the Oireachtas this would be very valuable information.
I have one question on paragraph 14. Does the quorum of six refer equally to paragraphs 14 and 18 of the Schedule?
The quorum of six is final in relation to either paragraphs 14 or 18 of the Schedule.
The point I wish to raise is on paragraph 6. Perhaps I should hastily assure the Minister that it is on paragraph 6 (2) rather than on paragraph 6 (1). Paragraph 6 (2) says:
An ordinary member of An tÚdarás may resign his office as a member by letter addressed to the Minister and the resignation shall take effect when the letter is received.
We had a discussion on this in a recent Bill. My memory is that it was discussed on the Nuclear Energy Bill, but I am not sure about this. It was pointed out that, in fact, this provision for which the Minister can cite precedent may well produce an effect which the Minister would not welcome. It would appear that the meaning of this is that as soon as the letter of resignation is received in the Minister's office the resignation then takes effect and nothing can be done about it. I do not know whether this means that, as soon as the letter is stamped in the registry in the Department of Education, the person has then resigned. Paragraph 6 (1) of the Schedule gives the Minister great powers to remove an ordinary member. Paragraph 6 (2) of the Schedule does not give him any power to request or persuade a member to remain as a member of the Authority when he feels inclined to resign.
This matter was discussed at some length on recent legislation and a more appropriate formula was adopted on that occasion. While nothing should be done to interfere with the freedom of a member to resign, there might be cases in which reconsideration and a discussion with the Minister or a discussion at the Minister's request between the member and the chairman of An tÚdarás might be the best way out of the situation. Perhaps a provision to the effect that the resignation would take effect on the date of the next meeting of An tÚdarás might be more appropriate. I raise the matter now and ask the Minister if he would look at this particular point between now and the Report Stage of the Bill.
I do not know whether it would be necessary to look at this or not, but I certainly can look at it. The only point I would make is that I am almost certain that, if an ordinary member wished to resign, he would be most likely to discuss this with somebody, possibly with the chairman or possibly with the Minister, before he would actually send in his letter of resignation. For that reason it could be possible to have some sort of discussion prior to his writing this letter. I could not imagine, unless for some reason which would involve the member not being likely to change his mind, that he would just simply sit down and write a letter to the Minister and say: "I have resigned", rather than that he would discuss with the chairman, or possibly with the Minister, his situation and his reasons for wishing to resign. In that case, if the chairman or the Minister thought that he could be persuaded to remain on, it could be done at that time.
I might say, indeed, that the chairman might be one of the reasons why he wished to resign. I would ask the Minister to look at this in order, perhaps, to provide for an occasional hastiness or imprudence on the part of one of the members of the Authority.
Question put and agreed to.
Title agreed to.
Bill reported without amendment.
Amendments will be tabled for Report Stage. I should be glad if the next Stage could be taken as early as possible in the week. The normal frustration of Opposition Senators in regard to amendments becomes greatly intensified when the Dáil is sitting on its last day or even has adjourned. It may well be that we would perhaps even get one amendment from the Minister on this Bill on Report Stage, so I should be glad if the Report Stage were taken before the Dáil adjourned.
Report Stage ordered for Tuesday, 20th July, 1971.
Business suspended at 6.5 p.m. and resumed at 7.15 p.m.
