In section 7 (3) we read that members under subsection (6) or (7) when they cease to be a member of the academic staff or a student will cease to be members of the board. Has the Minister given any further consideration to the question of a definition of "a member of the academic staff"?
National College of Art and Design Bill, 1971: Committee Stage (Resumed).
Question proposed: "That section 7 stand part of the Bill."
I have consulted the draftsman and he told me there was no necessity for such a definition as its meaning is clear and obvious. In section 26 reference is made to academic and other staff which clearly indicates the differentiation between the teaching staff and others such as the registrar and so on. I am informed by the draftsman that there is no need to make any change.
What then is to be construed on the reading of "a member of the academic staff"? At which level does it apply? Is it part-time, whole-time, assistant, temporary assistant, demonstrator or what?
I am sure all the teachers in the College of Art will be academic staff.
In any university we admit that professors, lecturers, assistants, demonstrators, part-time demonstrators, tutors, clinical assistants——
So far as I know there is no such thing as demonstrators in the College of Art. They are all teachers.
A demonstrator is just a recent graduate who is doing some graduate work and assists in teaching or demonstrating.
There is nobody of that type in the College of Art.
Yes, but there could be. Any organisation or any teaching institution where you have any opportunity for post-graduate work will undoubtedly have such people. They are listed in every third level institution that I know of.
We have not got them. My information is that I do not need to make any change for them.
My suggestion to the Minister would be to go ahead and define an academic member of the staff and define it as somebody holding a contract for more than one year involving either full-time duties or part-time duties of 50 per cent or something similar. After all, the Minister has, in a later section, attempted to define people that were considered as being associated with the college as having more than 18 hours a week as far as the Limerick institute is concerned.
That is quite a different matter altogether.
With due respect, I think that should be done. Otherwise any demonstrator will be as much a member, in accordance with this Bill, of the academic staff as the head of a department.
Question put and agreed to.
SECTION 8.
I move amendment No. 19:
In subsection (1), lines 13 and 14 to delete "either as a candidate for election to either House of the Oireachtas or".
This is on old battle that we have fought unsuccessfully for the last ten years to try to remove the ridiculous restriction put on candidates nominated for the Dáil or Seanad, where they should cease to be members of the board. That applies in many respects. It could apply even in regard to the university panel where a large number may be nominated candidates. I cannot see why nomination as a candidate should in any way act as a disqualification to a person functioning on such a board, which is supposed to be acting as a unit uninfluenced by political or other considerations. I think it lowers the standing of politicians in general and people aspiring to political life to have such a ridiculous prohibition in legislation. I am informed that no such restriction applies in England or indeed any of the Common Market countries. They have a far higher respect for their politicians than we have. Consequently, I move that we delete the words mentioned in the amendment.
I want to say very briefly that I support Senator Quinlan's point of view on this. I simply cannot see what reason there should be for having this disqualifying provision. I can only suspect that it has been copied slavishly into the Bill from some other Bill which has nothing whatever to do with art education or anything connected with what we are talking about this evening.
As Senator Quinlan said, it is a common feature of similar type legislation. I have already expressed my view on this. I have a certain amount of sympathy with the proposal put forward by the Senator, but I feel it is not something which should be considered in relation to an individual Bill. There is a committee dealing with Dáil procedure at the moment and I think it is a matter which, because of the fact that it is contained in a lot of legislation, should be considered by the committee. I would suggest to the Senator that he should put forward a proposal to that committee in this regard. I do not feel —and I said this in relation to the Higher Education Authority Act—that I should make changes of this kind in an individual Bill. It is something which has been part of legislation for a considerable time. Apart from that, I have sympathy with the sentiments expressed by the Senator.
If there was any means by which we could put it forward as a resolution from Seanad Éireann I think it would carry more weight than if it came from an individual Senator. I think there is agreement on all sides that this is a wrong procedure. It only came in about ten or 12 years ago. The first time it appeared was around 1957 or 1958. Many of the older Acts do not have this. They have a disqualification when a candidate is elected to either House, but not for nomination. I accept the Minister's good wishes on it. It is something about which we should try to do something. Perhaps by resolution of Seanad Éireann we might ask that this aspect of the law be corrected.
Amendment, by leave, withdrawn.
Section 8 agreed to.
SECTION 9.
I move amendment No. 20:
To add to the section a new subsection as follows:
"( ) A member of An Bord who shall have failed to make the disclosure prescribed in either of the foregoing subsections of this section, shall, if An Bord resolves that it has established such non-disclosure after having given the member concerned an opportunity to explain his conduct, be disqualified from holding and shall cease to hold office as such member".
I explained the purpose of this amendment to the House on the Second Stage. The section to which I propose that a subsection should be added purports to prohibit a member of An Bord from failing to disclose any interest which he may have with a company or concern with which An Bord proposes to make a contract, or any interest in a contract which An Bord proposes to make, or his relationship to a person who is a candidate for appointment by An Bord as an officer or servant. These are entirely creditable provisions and, as I suggested on the Second Stage debate, it would be sensible to back these provisions with some sanction. I know that it seems disagreeable to threaten a member of an academic board with the sanction of disqualification, but I observe that the Bill already contains such provisions. In section 11 we see that members of An Bord are disqualified from holding office if they are bankrupt or if they make compositions with creditors, or if they are sentenced to imprisonment or penal servitude, or if they cease to be ordinarily resident in the State.
Bankruptcy may not be culpable in an individual at all: some people become bankrupt through no fault of their own, or certainly through no moral fault of their own. Possibly, a lack of business prudence could be the cause of it. Nonetheless, the provisions of this Bill as they stand will put a bankrupt man out of An Bord. Equally, if he goes to live abroad, I take it that no moral turpitude is attached to that, although I can see it would hamper him and interfere with the discharge of his duties as a member of An Bord.
It appears to be illogical that these things, which are not morally culpable and in no way affect the suitability of a person to hold office as a member of An Bord, should be there as grounds for disqualification, while the doing of something which the Bill specifically prohibits, namely, failing to disclose a relationship with somebody whom An Bord proposes to appoint, should not be included among these disqualifications.
On looking over my amendment again, I am inclined to acknowledge, in case the Minister wants to make that point, that it might have been neater had I phrased this amendment as an amendment not to section 9, but as an amendment to section 11. If the Minister was sympathetic towards this point of view, I should be prepared to withdraw this and bring it in again, with the support of another Senator, on Report Stage. I urge on the Minister the illogicality of providing a disqualification section of the kind that we have in section 11, while failing to disqualify a man who has broken a requirement positively laid upon him by this Bill in section 9.
I do not see any necessity for this particular amendment. If a member of An Bord were guilty of such conduct it would naturally be reported to me, and if I thought that the circumstances warranted it, I would have the power to remove him from office. I went a very long way in accepting the proposals put forward by the Opposition in the Dáil in relation to this. I had a certain amount of reluctance about accepting it, because I felt that perhaps it might reflect, to some extent, on the integrity of the members of An Bord. After the argument was put forward by, I think, Deputy FitzGerald, I agreed that I should reconsider the matter. I reconsidered it and added this amendment on the basis of the arguments put forward by him. The sanction is there in the sense that I have the power to remove the member from An Bord. It would be much better that it should be done in that way than in the manner which is suggested by the Senator in his amendment. Therefore, I do not see that there is any reason why we should add this.
I know the Minister will understand that I do not intend anything hurtful to him personally, and I want to make that perfectly clear. I have never heard any suggestion that the Minister himself would fall under the description which I am about to give. It has not always been the case in this country that Ministers have acted in the way that the Minister for Education is outlining here this evening. There have been examples of cases in this country, some of them well known to the public, in which nominees of Ministers have misbehaved in the offices which the Minister has conferred on them, and the Minister has stood over them and shielded them.
I am not alleging that the Minister for Education is of that disposition, but I cannot see why we should be asked to make an act of faith in his successors. Above all, I cannot see why we should bother having this disqualification clause if the prohibition of section 9 is not to contain any kind of sanction. We need not have section 11 at all. If the Minister is given power to remove people from An Bord, presumably he is able to make up his own mind about why he should want to remove them. If the Minister is allowed to remove people from An Bord, section 11 appears to be otiose and it would be possible for the Minister to keep up his sleeve a certain number of rules for removing people from An Bord. He should say to himself: "This man is bankrupt, but not only is he bankrupt, but his bankruptcy is of a particularly dishonourable kind and it will bring the board of which he is a member into disrepute, and I shall remove him for this reason". The Minister may not have intended this and I accept that he behaved reasonably in the Dáil in regard to suggestions put forward by the Opposition. However, I think that he is in a cleft stick here.
In section 11 there are a series of situations in which somebody is to be disqualified from membership of An Bord, not including the situation in which somebody disobeys the clear provision of section 9. It is true that the Minister can remove somebody who infringes section 9, but equally he could remove the people who are contemplated by section 11, even if section 11 were never in the Bill. I do not regard this as a matter of absolutely first importance, and I do not wish to hold up the House unduly about it. I should like to impress on the Minister that, as it stands, the thing is irrational. If what he says about his power of removal of somebody who disobeys section 9 is true, there can be no particular reason for section 11 to be there.
I do not see the analogy between the two things. In section 11, practically all of the things here are very obvious to everybody concerned. In relation to the other, it might not necessarily be obvious. The point I want to make is that supposing An Bord decided that a particular individual had not disclosed this information and that somebody was appointed in a wrong manner because of this, I cannot see how a Minister could possible protect him if he had done something that was so very obviously wrong. An Bord would ensure that the public would be very well aware of it and, therefore, I would see a situation where, if it were really a serious matter, the Minister would have no option but to remove the member from An Bord. Because of the fact that the Minister has the right to remove a member from An Bord, the particular problem that Senator Kelly sees in relation to this subsection is covered by that.
I shall accept that but I do not go along with the idea that we should make acts of faith in future Ministers and in the likely standards that they are going to uphold in regard to their own nominees. Even if we are going to accept that, I should like to ask the Minister: what is the point of these disqualifications in section 11? If the Minister has, as in fact he has, under section 6, subsection (5), an absolute discretionary power of removing members from the board I can see no sense in section 11. The provisions of section 11 are much too inflexible and the Minister should delete it. I can imagine a man being a useful member of the board, notwithstanding a bankruptcy, and perhaps notwithstanding a prison sentence. The Minister is arguing about two sections on lines which are mutually inconsistent. I will see what he has to say about section 11 when the next amendment is moved.
I wish to support the case made by Senator Kelly. It is curious not to have any penalties attached to section 9 or without the decisions arrived at invalidly being declared invalid. If the person concerned fails to disclose information and a contract is placed, there is no provision in the Bill for rescinding that. If an appointment is made and the vote of the person concerned is a vital vote and it is discovered later that according to this section the person should not have voted, there is no provision in the Bill for disclosing this. Under section 11 this should be grounds for automatic disqualification but it should also, when established, be grounds for invalidating the decisions taken. Otherwise, I cannot see why section 9 should be included.
Is amendment No. 20 withdrawn?
No.
Amendment put and declared lost.
Section 9 agreed to.
Section 10 agreed to.
SECTION 11.
I move amendment No. 21.
To add at the end of the section the following:
"; provided, however, in the case of a sentence of imprisonment or penal servitude, that the Minister may dispense such member from the application of this section if he is of opinion that the offence in respect of which such sentence was imposed is of such a nature as in no way to call in question the suitability of such person to be a member of An Bord, and that the duration of the sentence will not materially affect the capacity of such person to act as a member of An Bord".
This amendment is on the same theme approached from a different angle. If the Minister or his advisers had looked at this section more closely, they would have felt it to be unduly inflexible. I suspect, as I often suspect in legislation here, that it has been copied with minimal reflection from some other provision in a different Act which has a setting completely unrelated to the setting of the Bill we are dealing with. A member of the board who ceased to be ordinarily resident in the State should be disqualified because he is not going to be any asset to the board: he will not be present at their deliberations. He cannot be present unless he incurs expense and inconvenience which most people will not bother incurring.
Although my amendment does not relate to bankruptcy this is a somewhat similar provision. I can see some little reason behind it. If you have a bankrupt man on a board which is in a position through its contracting power to bestow benefits on other people, there is a slight possibility of temptation being in a man's mind to do something which section 9 forbids him to do. The Minister amused me by talking about not wishing to put into the Bill things which would appear to reflect ab initio unfavourably on the members of his board. The Bill is bristling with such things and section 11 is the worst of the lot.
What excuse can there be for disqualifying a bankrupt man from membership of the board unless the idea that his insolvent condition will expose him to venal temptations of the kind which section 9 tries to rule out? Even at that I can see some sense in it. The same goes for the situation where somebody makes an arrangement with creditors which implies insolvency.
The provision which disqualifies a man who has been sentenced to imprisonment or penal servitude, no matter how short the period of imprisonment is, is unreasonably inflexible in this Bill. This would be sufficient to disqualify somebody who had been sentenced to seven days imprisonment by a district justice for contempt of court. This is something which many a man might be guilty of in the heat of the moment, but which would in no way disqualify him or make him prima facie unsuitable for membership of a board such as we are talking about. I can imagine other forms which imprisonment for short terms might take on foot of offences which in no way would reflect on the man's suitability as a member of a board of this kind. It might reflect on his suitability for other things, but we are talking about a board which is going to administer a college, the purpose of which is to educate artists. We are being foolish in solemnly passing into law a provision which will disqualify a member of this board if he becomes bankrupt or if he undergoes a small term of imprisonment for a minor offence which might in no way be related to his suitability to serve on the board.
The amendment I have put down speaks for itself and I move it hoping that the Minister will understand the sentiment behind it. If he is inclined to sympathise with it and does not like the way it is drafted, I will try and improve it by Report Stage.
When Senator Kelly was speaking about subsection (2) in section 9 he said he could not see the difference in what was involved there in relation to the Minister and what is involved here. In the previous subsection, if an individual does not disclose information and the Minister is informed of this, the Minister can decide to allow the person to remain on the board on the basis of whether he regards the matter as serious or not. In this situation it is quite different. A situation of this sort would place the Minister in an invidious position. The task of judging whether an offence which earned a prison sentence was serious enough, would fall on the Minister. Courts take all the circumstances into account when imposing a prison sentence. In my view it is not the function of the Minister to appear critical of the judgment given in a court of law. This is my main objection.
As I said in the Dáil, while I am not suggesting that Senator Kelly had this in mind, I know that, generally speaking, this type of amendment has been put down on previous occasions in relation to students and it is suggested that students, being what they are, might get into trouble, be put in prison, and we should not hold this against them in relation to membership of the board. A student who is elected a member of the board would have sufficient to do in studying and in his operations as a member of the board, and if he feels it is necessary for him to place himself in a situation where he will come into difficulties in relation to the law and suffer a prison sentence, then he should not consider himself as a candidate for the board.
This may sound old-fashioned. From views I have heard expressed, especially in rural areas, it could not be appreciated why a member of the board should operate in such a way as to create a situation which would involve him in this type of difficulty. The principle objection I have to it is that it would place me in an invidious position inasmuch as I would be asked to judge whether an offence that earned a prison sentence were serious or not.
I wish to support the case made by Senator Kelly. As far as I can recollect the provisions here are far more drastic than we have had in any Bill setting up boards in recent times. I was not aware that imprisonment for a short period, say for contempt of court or something similar, would act as a disqualification. In most cases it is a prison sentence of over six months. The Houses of the Oireachtas are much more important than the board of art we are setting up. The provision with regard to bankruptcy applies to the Houses of the Oireachtas and I think, subject to correction, that imprisonment or penal servitude has to be for a duration longer than six months.
There was a case some years ago where an independent Deputy, named Murphy, spent some time on hunger strike in prison and that did not disqualify him from being a Member of the House. I can see the Minister's point of view that he should not sit in judgment on what the courts decide, but I feel he would need to qualify the length of the prison sentence. That should be done on Report Stage by inserting "a sentence of more than six months duration". The phrase "ceases to be ordinarily resident in the State", especially when dealing with art, seems to be unnecessary and much too restrictive. In this case does the State imply the Thirty-two Counties as defined here, or would this prevent somebody resident in the Six Counties from being a member of the board?
If you went to live in Aughnacloy you would be disqualified.
I am just questioning what is the definition of "State" as used here. With modern communications it is far easier to travel from London to Dublin than from Cork to Dublin. It would take much less time than to travel from Ballina or somewhere like that to Dublin.
What is wrong with Ballina?
We will make it West Clare then. It would take longer than to travel by jet from London which takes only one hour. If among the Minister's nominees there was somebody whom he felt had a contribution to make, but he lived in England or within jet travel range, why not appoint him?
Would you bring him from Paris to London?
A Senator
No, Cork.
Why make it so restrictive? On the one hand we find that the Minister goes into petty restrictions which we feel will tie his hands. On the other, he leaves things too wide open. In this case both are defects.
I find myself in the position that I am not in favour of the section as it stands but neither am I in favour of the amendment. I am not in favour of the amendment for the reasons suggested by the Minister, but I honestly fail to see why the Minister did not accept the arguments which were advanced in another place which would have had the effect of barring from membership of the board only somebody who was in prison for more than six months. This would have the effect of making the same conditions applicable to membership of the board as to membership of this or the other House. I was present in the other House when the Minister was being pressed on this and he was very plainly wrong-footed and totally unaware even of the conditions attaching to membership of these Houses. I got the impression at that stage that he was quite favourably considering introducing the same six month limit as applies to membership of these Houses. I am sorry to see that he did not introduce it there and he is not prepared, apparently, to introduce it here.
I want to say, in regard to the Minister's intervention a few moments ago, that although he was good enough to say he did not attribute this argument to me, I feel I should dissociate myself from it entirely, even hypothetically. I have absolutely no sympathy with students who take the law into their hands, smash up property or make life impossible for those around them any more than I have sympathy for anybody else who does these things. I certainly would never make the case that the situation of an art student as a student should be considered differently from the situation of anybody else. If the Minister wants to know the kind of figure I had in mind, when I was first considering this section it was not a student at all but an adult, perhaps an ageing member of this authority who got convicted for drunken or dangerous driving. That is, of course, something I deprecate but it is something which would not necessarily disqualify him from useful membership of the board. I do not think that the fact that there are student members who may be uncontrolled, uncontrollable, fail to control themselves or get into some kind of trouble, is central to the issue at all. If the Minister looks honestly at sections 9 and 11 he will find, as I have said, that two quite different standards are being applied to different kinds of behaviour for no good reason that I can see.
I know the Minister feels that it would be invidious for him to have to sit in judgment on people who are bankrupt, had been sentenced to imprisonment or had gone to live in Warrenpoint or somewhere else and decide whether or not they should be exempted from the application of his disqualification. Will he not have to do this in regard to section 9? Under section 9 somebody who disobeys the duty which that section lays on him to disclose his interest in a contract or an appointment deserves, in my view, to be disqualified from sitting on the board.
The Minister's reply to that argument is "Well, of course, if such a thing happened, I, or my successor, would feel obliged to remove him under the removal provision of section 6, subsection (5)". In that case the Minister is going to be sitting in judgment on a case of non-disclosure and he may find it equally hard to make up his mind whether the non-disclosure is serious or trivial. I feel that the provisions represented by sections 9 and 11 are not satisfactory. These two sections, jointly or collectively, aim at indicating a standard of conduct or behaviour for members of the board, behaviour either in regard to their activities on the board or in general outside the board. Quite different arrangements seem to prevail in these matters.
In regard to misbehaviour in the heart and bosom of the board no sanction of a visible kind is attached at all. It might not even be misbehaviour. Bankruptcy is not misbehaviour if it is accidental. Certainly going to live in Warrenpoint is not, I hope, misbehaviour. In a case like that there is no discretion allowed to the Minister at all. Somebody like that has to get off the board.
We had an unhappy experience with the Minister in the summer with the Higher Education Authority Bill when we battled along for many days and did not get him to accept a single amendment, although I do not think one of them had been put down in a partisan spirit. Not a single one bore the stamp of party. He did not accept a single one either. At the same time his demeanour towards this side of the House was at all times patient and courteous and I cannot find it in me to abuse him on account of his behaviour on that occasion. But I must say I cannot understand why a Minister who is reasonable and courteous towards those who disagree with him cannot see the sense in this case which is being made here and will not yield an inch in the case of either of these amendments. If the Minister perseveres in this attitude, I am afraid I will have no option, even at the expense of holding up the House but to put down an amendment on Report Stage which will try and combine the features which are valuable in sections 9 and 11 and provide some uniform system of sanction for all these various forms of misbehaviour.
I must say I cannot understand the purpose or the sense of the amendment. On what ground is the Minister to come to the conclusion that a certain sentence would call in question the suitability of such person to be a member of the board? It goes on to talk about the duration of a sentence which would materially affect the capacity of such person to act as a member of the board. I strongly suspect that if this amendment was in the Bill some of the Senators on the other side would be putting down amendments or calling on the Minister to introduce schedules to spell out what kind of crimes would materially affect the suitability of a person to be a member of the board or to put down a schedule as to the duration which would materially affect the capacity of such person to act as a member of the board. They would be saying this is leaving too much power to the Minister, that it is too vague. Who is the Minister to decide what kind of a sentence affects the suitability or what kind of a duration affects the suitability of a person? I am quite certain that there would be a demand to specify, to spell out, to have schedules, to say exactly what would affect the suitability of a person to act on the board.
In the first case it is imposing an impossible task on the Minister. In the second case it is doing something which is in general terms bad—to be laying down some kind of a criterion on the way in which the Minister is to approach the suitability of a person in certain circumstances but, at the same time, not giving him any guideline as to how he should approach this problem. As it stands it really has not anything to recommend it and raises problems which I genuinely believe, if it were part of the Bill, some of the Senators on the opposite side would be calling for much more specification as to how the Minister would exercise this jurisdiction in this regard.
Is there not the same need for specification under the powers the Minister proposes to exercise for nondisclosure under section 9? In other words, he is going to sit in judgment on that. I do not approve of that either but we should bring the section into line with what applies to the Houses of the Oireachtas. Can the Minister quote one board that has been set up in recent times where the same stringent conditions apply? I do not believe he can. My experience in this House is that no such conditions have been applied to any of the boards which we set up in the past. This is an innovation. So also is the one about "not necessarily resident in the State". I have not got a clarification from the Minister.
That would really arise on the section, not on this amendment.
In keeping to the amendment I suggest that on Report Stage the Minister would meet all our wishes if he replaced this section by one in keeping with the standards that we apply to the Houses of the Oireachtas, in other words, an imprisonment of more than six months duration or penal servitude.
I heard the very same argument in the Dáil and I put forward a case in relation to it. Senator Kelly mentioned that I had not accepted amendments. I have already stated in this House that I accept amendments which I feel will improve the Bill. If I feel they will not, then it would be quite wrong of me to accept them. Anybody who looks at the procedure of the discussion in relation to the amendment in the Dáil will find that I accepted a very considerable number of amendments. Perhaps if I had in mind ingratiating myself with the Seanad I would have resisted a certain number of amendments in the Dáil so that I could have given away to them here.
The Dáil did a perfect job.
As I say, I cannot accept amendments if I do not feel they are proper to the Bill. I feel that my having to decide in the case of non-disclosure in relation to section 9, subsection (2), is quite different to sitting in judgment on court decisions.
I asked the Minister to cite one example of a board where such stringent conditions applied.
As far as I can remember they applied in the Higher Education Authority Bill.
Certainly not.
If they were exactly the same the Senator would say the Minister was slavishly following another Bill.
I am anxious to preserve basic human freedom. As regards this question that a member will be disqualified simply because he has the misfortune to be sentenced to a week's imprisonment, why apply two different standards—one for the Dáil and another for this committee? Are our standards not good enough?
Amendment put and declared lost.
Question proposed: "That section 11 stand part of the Bill."
Would the Minister clarify the phrase: "ceases to be ordinarily resident in the State". Does this preclude somebody resident in the Six Counties who might be on this board or somebody who transfers residence there?
This refers to the State as defined in the Constitution.
That is the Thirty-two Counties?
As it is in the Constitution.
That is the Twenty-six Counties. So, in other words, we are voluntarily cutting off——
Can the Senator not read?
——any member resident in the North from functioning on this board. How insular can we be? That is an atrocious provision altogether. I have never read or seen anything like that. On all boards we welcome people from the Northern Six Counties to sit on these boards. We should and why not?
I will look at that.
Senator Quinlan has spotted something there.
I think the clause should be left out altogether. It is quite possible that we have some distinguished artist who emigrates or indeed is living in London and the Minister might feel that such a person would be an asset to the board. If we take the RTE Board quite a few of its members, including Eamon Andrews—I do not know if he is still a member—commutes quite regularly from London. What is wrong with commuting from London these days, especially in the world of art where we recognise that not all art resides in Dublin or indeed that the situation regarding art is satisfactory in the country? A breath of fresh air from the outside would be very desirable in this. Consequently, I ask the Minister to delete this altogether and in this we are giving him freedom for himself.
Question put and agreed to.
Section 12 agreed to.
SECTION 13.
I move amendment No. 22:
In subsection (3) to delete "five" in line 7 and substitute "nine".
This is consequential on an earlier amendment which I had moved in an effort to increase the membership of the board. While I think five as a quorum out of a possible 11 is too low, obviously nine out of 11 would be too high. I wonder if the Minister would justify such a low quorum as five. In other words, the Minister's seven nominees could act without co-operation from either staff or students. Is that the purpose of the section?
Surely the Senator will accept that five is a reasonable quorum out of either nine or 11.
Five is reasonable out of nine, not reasonable our of 11. Generally, the quorum should be over 50 per cent.
Amendment, by leave, withdrawn.
Section 13 agreed to.
SECTION 14.
I move amendment No. 23:
Before section 14 to insert a new section as follows:
"The Minister shall, after consultation with An tÚdarás designate the College as an institution of higher education by regulations under section 1, subsection (1) (c) of the Higher Education Act, 1970."
The Minister in earlier speeches has already given reasons why he does not want to tie his hand or tie those of the Higher Education Authority with regard to the future status of the proposed College of Art and Design. I do not regard these arguments as anything like satisfactory. I can see nothing but a continuation of the frustration and confusion which has characterised the last couple of years if this new college is to be consigned immediately after its establishment to a sort of limbo in which nobody will know precisely what it is or where it stands or what it stands for. We have all the more reason to press an amendment like this because of the extraordinary lack of clarity in what has been presented to us in relation to the proposed College of Art.
We have been given no idea at all of what kind of an institution the Minister has in mind. We are dealing with this in purely administrative terms and we have been given no idea of the type of institution or the functions of the institution which the Minister is proposing to initiate. This amendment is designed to put beyond all reasonable doubt the fact that a college of art and design is a college which justifies its place at the level of higher education. It deserves to be named as an institution of higher education under the Higher Education Authority Act. If it is not an institution of higher education what on earth is it? The people who are to be qualified in this institution would feel very dissatisfied if it is not so to be classified. Parents would, I suspect, have considerable difficulty and diffidence about sending their children to an institution like this if it is not so classified as an institution of higher education.
There may be considerable difficulty in regard to the allocation of State grants to students who would like to attend this institution if it is not classed immediately as an institution of higher education. All sorts of sentiments have been uttered on both sides of the House about the importance of supplying this country with a sufficiency of well-qualified teachers of art and design. If the whole status and role and future of the college is to be left in this state of suspension it seems that the whole attempt will be counterproductive. Certainly, in so far as grants are concerned, if students are not to get grants to the College of Art and Design they will not go there. If the fact that they do not get grants is because the college has not been designated as an institution of higher education, the Minister himself would be directly at fault. Instead of remedying the shortage of teachers of art and design we will, if anything, be increasing it. I would urge the Minister to set a headline here and to make clear the esteem with which he regards this institution which he is proposing to create and to put the question of designation as an institute of higher education beyond any doubt whatsoever.
We set up the Higher Education Authority as an autonomous body, and surely the Senator will appreciate that a provision of this kind would make a mockery of consultation. Suppose after consultation the Higher Education Authority had convinced me that the college should not be designated as an institute of higher education, I would be forced, if I were to accept this amendment, against the advice of the authority and possibly against my own better judgment, to designate it as an institution of higher education. This is the very point that was raised by the Opposition during the discussion on the Higher Education Authority Bill. I was very severely criticised in the Dáil, and rightly so, because when asked by a Deputy if I would designate a particular college as a college of higher education I said I would. It was very quickly drawn to my attention that I had no right, if I were to respect the autonomy of the Higher Education Authority, to designate, or even to state that I would designate, any particular college without having consulted with them.
Therefore, this amendment would place me in a position where I would perforce designate this new college as a college of higher education no matter what opinion the Higher Education Authority had of it. Having regard to every aspect of its courses and so on, I would perforce have to designate it and this would make a complete mockery of consultation. With regard to grants, it does not necessarily have to follow that an institution is designated as an institute of higher education to get grants, because recently I decided to make grants available to the teachers' training colleges, which are not designated as institutions of third-level education.
This is not to say that consideration will not be given to the situation in relation to this college and its designation. What I am saying is that it would be quite wrong of me to suggest that I would consider designating this college under the terms laid down here in this subsection.
In large part I have been impressed by what the Minister has said. On mature reflection I think it would not be wise to tie his hands too much in this regard. I should, however, be grateful for an undertaking in slightly stronger terms than the one he gave about consultation with the authority. It seems to me that it would be very difficult to frame an amendment which would have the desired effect. But, broadly speaking, what I should like to see happening here is that the Minister would promise and would undertake to consult with the Higher Education Authority within a reasonably short time after the establishment of the new college.
I should also like to see him undertake this consultation with a broad bias in favour of designation. It is impossible to write such a bias into an amendment or into a section but, if the College of Art and Design has the importance which he and which all of us would like to attribute to it, it follows naturally that there should be a bias in favour of designation by the Minister. It seems to me that this bias in favour of designation could be most obviously shown by the Minister expressing his determination and willingness to consult with the authority at the earliest reasonable opportunity after the college has commenced operations to see what can be done about designating it, to take the advice of the authority about the possibility of designating it, and to remove any doubt that may exist in the minds of people all over the country that the college will be the institution that he hoped it will be.
I think the Senator will accept that the very fact that I have written a section into the Bill which would enable me to do this shows my goodwill in relation to the matter. Certainly I will consult with the Higher Education Authority in relation to the designation, perhaps not in a very short time because I think it would be reasonable to expect that the authority would like to see the college in operation for some time, that they would like to see the type and standard of courses and so on before they could make up their minds on it. As I have said, the very fact that I have written this section into the Bill means that my goodwill is in that direction. The Senator will appreciate that to suggest I should consult with them very shortly after the college went into operation would be making it impossible in a sense for the HEA to come to any conclusion on it, but he can be assured that we will keep this in mind.
Amendment, by leave, withdrawn.
I move amendment No. 24:
In subsection (3) to delete all words after "1971" in line 33 and substitute "this Act shall be amended by an appropriate amending Act".
Provision is made for some changes when and if the college is designated as an institution of higher education under the Higher Education Act, but there are many parts in this Bill that do not conform or would not be appropriate for an institution of higher education. Indeed if the HEA are consulted, as the Minister would have to do in the case of designation, I feel reasonably confident that their answer would be: "Well, it can be designated provided it conforms to the standard for a third-level institution." That would involve the HEA being satisfied with the provision for staff—after all it would have to undertake the responsibility for vetting the staffing demands in future and seeing that these were adequate for the purpose involved. It would also have to be responsible for vetting the capital demands. To be satisfied it would require both of those undertakings.
There are many parts of the Act that conflict with the powers and responsibilities that the HEA would undertake if the College of Art were designated as a third-level institution. For instance, the submissions to the Minister and so on would be replaced by corresponding submissions to the HEA. Consequently, it could not be designated until an amending Act is brought in and the purpose of my amendment is to ensure that. The few amendments suggested here in section 14 do not in any way suffice for making the transition to a third-level institution. They do not remove all the basic conflicts that are between this Bill and direct reporting to the Minister, both on current and capital expenditure, and the corresponding provisions in the HEA Bill. Consequently, I can see no other way but to have an amending Bill if and when this is designated.
Frankly, I am puzzled with this amendment because it does not appear to me to make any sense. It is only when one reads the Senator's amendment in the context of the subsection one sees that it is out of place. The amendment would read:
Whenever and for so long as the College stands designated as an institution of higher education under the Higher Education Authority Act, 1971, this Act shall be amended by an appropriate amending Act.
It does not seem to me to mean anything. The subsection as it stands enables a smooth transfer to take place in the event of such designation without the need of any fresh legislation.
I cannot understand the Minister's confusion about this. It seemed to be perfectly straight, obvious, plain use of the English language. There has to be an amending Act to go with it and that amending Act is required as long as the institution stands designated. In other words, I have been conscious of the fact that the Minister may wish to have the power in case a decision is taken to remove the college from the list of designated third-level institutions and they may have to revert to the former status quo and therefore to revert to the original Act. I cannot see any difficulty in construing those two together.
Is the Senator suggesting that when the college stands designated we should pass Acts every day so as to keep it designated? I cannot understand it at all. If the Senator reads the section he will see that the position is that the subsection as it stands will enable a transfer without the need of any fresh legislation.
I am referring to section 15 (1) which reads:
An Bord shall keep, in such form as may be approved by the Minister, with the consent of the Minister for Finance, all proper and usual accounts...
The corresponding requirement in the Higher Education Authority Act is that these institutions under the HEA can keep these accounts in a form that is approved by the HEA. In fact, great care and work is going into trying to harmonise those forms of accounts so that the HEA will be in a position to make a comparative judgment and assessment of the various claims. How can the Minister reconcile section 15 (1) with the Higher Education Authority Act? Likewise, section 22 reads:
An Bord may, with the approval of the Minister, by construction or acquisition... provide itself with and equip and maintain such buildings and other premises...
That is all right as it stands undesignated. When it is designated and comes under the HEA then all such capital provision has to go through the HEA. These are the channels we set up in enacting the Higher Education Authority Act. How can the board function as a third-level institution under this legislation?
Surely the Senator is not suggesting that there is anything in section 15 (1) that would be affected in any way by the college being designated as a college of higher education? It simply says:
An Bord shall keep, in such form as may be approved by the Minister, with the consent of the Minister for Finance, all proper and usual accounts of all moneys received or expended by it and, in particular, shall keep in such form as aforesaid all such special accounts and records as the Minister may from time to time determine.
This whole business of keeping accounts and audits for the Comptroller and Auditor General is a matter which would apply to universities as well as to colleges of art or any other colleges.
I have the Higher Education Authority Act here. We can take the corresponding provisions from it. Section 7 of the Higher Education Authority Act, 1970, provides that:
An tÚdarás may annually, or at such longer intervals as it may determine, require any institution of higher education to submit a statement of its financial position to An tÚdarás and it shall be the duty of every institution to comply with requirements which are imposed on it under this section.
That section, as I read it, conflicts with section 15 (1) of this Bill. If the Higher Education Authority have the authority for doing this, why the reporting directly to the Minister?
I am sure the Senator is aware that, while this is true in relation to the HEA and refers to the HEA accounts, University College, Cork, for example, must also submit its accounts to the Comptroller and Auditor General.
Yes, to the Comptroller and Auditor General at section 2 but not at section 1.
All that is involved in section 1 is that it would be kept in such form as the Comptroller and Auditor General would wish it to be in, and this would be in a form which would be approved by the Minister, with the consent of the Minister for Finance.
Yes, but why this duplication?
There is not any duplication any more than there is duplication between the HEA and any other college of higher education which either is directly under the HEA or will be designated by the Minister.
University College, Cork, is not bound by any provision like that in section 15 (1). It has to submit accounts to the Comptroller and Auditor General but it is not bound to keep accounts in such a form as may be approved by the Minister, with the consent of the Minister for Finance. It is bound by the Higher Education Authority Act to provide accounts.
Surely the Senator will accept that the form which would be approved by the Minister, with the consent of the Minister for Finance, would be the form in which the Comptroller and Auditor General would wish to have the accounts made available to him?
I do not think so. We transferred that power and the power of co-ordination of accounts, which is a most vital one, to An tÚdarás. I do not see why any other third-level institution should be treated differently.
So far as I am aware we have not amended the 1908 Act in relation to the auditing of the funds or the moneys of the various universities. This is not in any way in conflict. I must remind the Senator that I studied this very carefully before I brought it into the House, and especially when I decided to introduce the subsection in section 14. I studied the situation very carefully as to what would be affected by it. I am satisfied that the particular subsections I mentioned are the only ones which will be affected by the designation of the college as an institution of higher education.
How does the Minister then reconcile section 10 of the Higher Education Authority Act with the position in regard to the National College of Art? Section 10 says:
An tÚdarás shall assess amounts of State financial provision both current and capital which it recommends for higher education and research and for any part thereof either in relation to the current or capital periods.
If this becomes a third-level institution its requirement, current and capital, will have to go through the HEA channels. Is not that correct?
The same thing applies, if it is designated, as applies to a university. We have gone through all this before.
I cannot see it because An Bord in section 22 may "with the approval of the Minister construct or acquire premises", et cetera. No such approval by the Minister is required by third-level institutions to construct premises. This is part of a capital grant commitment and that capital grant passes through the HEA. In other words, I am making the point that as far as I can read on this—and I have a certain amount of experience of reading Bills here—there is a basic conflict between many of the sections here and what the HEA would require as the hallmark of a third-level institution. The procedure that I would envisage is when the Minister thinks that the time has come to designate it he would ask the HEA and the HEA then would require that this new third-level institution should be put on a par with the existing ones as far as procedure goes both for current and capital expenditure, or the keeping of accounts, et cetera. Therefore, they would look over this Bill and require amendments to it. All I am asking is that this be done in the normal way. I want to ensure that all third-level institutions are treated the same and that some of them do not remain tied to the apron strings of the Department.
I think the Senator is misreading this. If he looks at it again he will find that, if the college is designated, section 14 will go as well as section 16 (2).
Control of premises, setting up of premises and so on does not go. I am referring to section 22 now.
Amendment put and declared lost.
Section 14 agreed to.
SECTION 15.
Question proposed: "That section 15 stand part of the Bill."
I do not want to go over the ground that has been gone over by Deputy Quinlan. I think I can say in three sentences what is worrying us here, especially because this Bill is in connection with the College of Art, and because it is presented to us as a genuine attempt to take the College of Art out from under the wing of the Department of Education. What should be ensured is that, if the College of Art is designated as an institution of higher education by the Higher Education Authority, its position will be no worse in all respects than any other institution of higher education. That is the simplest way in which I can phrase it. The Minister has assured us—I do not think that he is really quite satisfied about section 22—in connection with this section that the College of Art would be in no worse position, if designated, than any other similarly designated institution. I am prepared to accept this assurance in respect of this section. The Minister should also tell us that, if it appears in the working out of this Act and its consequences, that the college has been put in an invidious position, he would look seriously at the possibility of rectifying the situation.
The Senator said that he did not wish to go back over all the arguments put forward by Senator Quinlan. I do not want to go back over all the arguments put forward by myself in relation to this during the discussion with Senator Quinlan. It is rather difficult to see why this section is being opposed by the Senator, particularly after hearing the points I have made. The accounts of the college must be audited. For that purpose they must be submitted to the Comptroller and Auditor General in a form acceptable to him. Under subsection (1) of section 15, with the approval of the Minister for Finance, I can lay down the form acceptable to the Comptroller and Auditor General.
I have pointed out that I have studied this matter very carefully and I agreed to insert the subsection which would permit me, after consultation, to designate the College of Art as a third-level institution of education, if the HEA and myself thought fit. I also pointed out that I studied section 15, (1) and (2), and that I could not see any conflict there. In fact, if I were to agree to the deletion of this particular section, I should be putting the College of Art in a more favourable position than other colleges which would be designated, or which would automatically become higher education institutions under the Higher Education Authority.
For the record, I believe that the Minister may have misheard me. I was not moving Mrs. Robinson's amendment. I was simply speaking on the section. I said that I am prepared to accept his assurances that this section does not impose an unusual obligation on the College of Art, in the event of its being designated a third-level institution. The other point could perhaps be dealt with more adequately in connection with a later section.
Question put and agreed to.
SECTION 16.
Amendment No. 25 not moved.
Section 16 agreed to.
SECTION 17.
I move amendment No. 26:
In subsection (6), line 22, to delete "numbers".
We find that the National College of Art is tied hook, line and sinker, to the Department of Education. Therefore, it is a farce on a national scale to suggest that it is being removed from the control of the Department. The subsection reads:
The numbers, grades, qualifications, tenure of office and remuneration of the officers of An Bord shall be subject to the approval of the Minister with the consent of the Minister for Finance.
I have experience on some boards where almost similar irksome provisions apply. If the board wish to appoint even a junior assistant, the agreement of the Department of Education must be obtained. If that is not running it, I do not know what "running it" means.
This is a section I missed on the last amendment. How could any third-level institution submit to this? This section would undoubtedly have to be removed in its entirety, if the College of Art were ever designated as a third-level institution. The control, numbers, grades, qualifications, tenure of office and remuneration: how much more control have the Department got at the moment than what is provided here? What I totally object to is going through the farce of saying that you set up an independent autonomous institution, and then you are tied hook, line and sinker, so that it has no real independence worthy of the name. As long as it stands undesignated, I should be satisfied to remove "numbers". In other words, I do not want this referring back at all times: "Sorry, we want to increase the number of assistants from seven to eight: we want to add one new assistant"; or, "we want to add one new assistant to the director." That is totally wrong. The purpose of this amendment is, at least, to shift the question of numbers. This body will be limited by finance to the number it employs. Surely a body, governed by a board that we have been assured by the Minister is of such quality and so well-established, is a body you must have confidence in to at least be able to spend the meagre sum of money that it will be able to get from the Government. If, in its wisdom, it decides to employ an additional assistant at a salary at, say £500 a year in any one office, it should be entitled to do it, provided it has the money to do it, and not to be running back to Hume Street or Talbot Street for every change it has to make.
I can understand Professor Quinlan's enthusiasm for the amendment and possibly for the deletion of this section. This idea of autonomy is not accepted in rural areas to the same degree as it is purported to be accepted in this House. The people in the country who pay the bills have the feeling that, if the Government are going to provide the money out of the taxpayers' pockets, they might have some say in what is happening. I would not like to see the Department of Education having too much say in the College of Art. The College of Art have to grow up and be seen to grow up. Their record to date is not good and people are very reluctant to give them complete powers which, even while they are under the Department of Education, they abuse to a great extent.
But the amendment——
We are now talking about the section.
An Leas-Chathaoirleach
The amendment deals with numbers.
It all relates to finance. The people living in the country are appalled at the conditions and the behaviour of the College of Art. If the Department get this kind of control, I visualise the stage when this becomes workable that the college would be raised to third-level status. They have to prove to the people who are paying the bill that they are responsible and are prepared to carry out what they are appointed to do. They have some adjustments to make. There is no autonomy in county councils or in local authorities. They are subject to public audit.
An Leas-Chathaoirleach
I should like to point out to the Senator that we have passed the section dealing with audit. It does not arise on this amendment.
It arises in relation to the question of remuneration and appointments. They are all interrelated.
That would appear in the accounts furnished under section 15.
The section we are dealing with now covers them anyhow. The question of appointments comes into it. Until there is a better performance made apparent to the ordinary people in the country and the College of Art are prepared to do something which will entitle them to third-level status and to autonomy, there is more required of them.
I support this amendment. Senator Quinlan is quite right in objecting to the fact that, in addition to all the other controls set out in this section, even the numbers of officers which may be engaged by the board will be subject to the control of the Minister. I agree also with the argument that it is pointless painting this Bill as giving autonomy as long as a restriction of that sort is made. I agree with Senator Honan that it is right there should be full accounting for money expended. This is covered in detail in section 15 of the Bill.
If the board are to be hamstrung in this way, the kind of difficulty which might arise in the future may be even greater than those which have arisen in the past. To take a simple example, if there should happen to be a particularly large growth in the number of students, or a large increase in the interest by students in a particular function of the college, it may be necessary, in order to cater for that and as a matter of urgency, to engage a new officer. Under this provision in section 6 this cannot be done until it goes through the Civil Service routine and eventually finishes up on the Minister's desk for a decision. With the best will in the world the Minister will not find himself in a position to adjudicate on a question without getting the pros and the cons from the college, the civil servants and his Department. While all this is happening difficulties may arise in the college.
Senator Quinlan's argument is sound in that the reference to numbers should be deleted from section 6. This still leaves the Minister with a good deal of control. He has the power to decide on the grades, the qualifications, the tenure of office and remuneration of the officers. All this amendment seeks to do is to ask the Minister to relinquish the power of deciding for the board the numbers of people they will employ.
I had determined to hold my peace on this amendment because I thought the section as it stands is distasteful but not necessarily disastrous, until I discovered that in section 1, the definition section of the Bill, subsection (3) tells us that:
A reference in this Act to an officer of An Bord includes a reference to a member of the academic staff of the College.
I had thought on reading this section that it was designed, admittedly in a clumsy way, to prevent the growth of a bureaucracy within the National College of Art and Design without the permission of the Minister. It now appears that this is something which extends to control the board's autonomy in the matter of appointing academic staff to the institution. The Minister has already told us he is anxious not to have this College of Art and Design, if it is designated as an institution of higher education, put in any worse position than any other institution of higher education. I cannot see any other effect of this section than to worsen its position with respect to other institutions of this kind.
Far too much is being made of this amendment. One would think that it did not apply in any form to any other institution. In fact it applies to the Higher Education Authority, the Institute of Advanced Studies and, as many Senators are aware, it is not possible to create statutory posts in the universities without submitting the statute to the Oireachtas. The point I am making is that one would imagine that this was something which was absolutely new and strange. My view is the way it would operate is that the board would propose a general establishment and, following consultation with me, we could agree on what that establishment would be. Later on if the board found that they needed to add to this establishment I do not see that there is all that much difficulty in coming to me in relation to it.
To listen to Senator Quinlan on this matter one would imagine that the whole foundation of the autonomy of any institution depended on whether or not they had the right to appoint somebody to a particular post in the institute. My view is that the board would be very much more concerned in exercising its autonomy in regard to the development of art generally and the structure of courses in the new college. Therefore I do not see any reason why I should delete the word "numbers". It applies in many other instances and it does not, in my view, affect in any way the autonomy of an institute such as An Coláiste Náisiúnta Ealaíne is Deartha.
I do not know if we are speaking the English language here at all. There is total confusion about the idea of autonomy. Senator Honan is all the time saying: "He who pays the piper must call the tune." The tune is called here because under section 14 the grants to An Bord are paid yearly and they have to submit a request for the grant and a substantiation of it to the Minister. In common with the courtesy we get in all other institutions, we are not told or consulted as to why this grant was being requested or why we are only going to get 75 or 80 per cent of it. One can go bankrupt if one likes. That is autonomy as practised here. The result is you have a certain sum of money to run the place for the year. Surely common sense says that in the day-to-day spending of that money, which you are going to have to account for to the Auditor General and to the Government afterwards by virtue of the account, you must delegate authority to do that.
If Senator Honan is running a business and he decides on so much for development in one section of it, surely he trusts whoever is in charge of that business to do some minor adjustments as the occasion arises. The Minister has chosen a very bad example in the HEA; I have the Bill before me and I cannot find any such detailed control of all the staff. The other example given by the Minister, the Institute for Higher Education, is a further bad example. Anyone who has any connection with that or the various boards in it are constantly pointing out this ridiculous provision. There is general agreement that if and when the Institute for Higher Education becomes a designated institution, as it expects to become, this will have to go. It will not be a question of ringing up "Dada" in the Department of Education and saying "we have £200 to spare here. In place of appointing a part-time assistant in this may we appoint a part-time assistant in something else". It spells out here not alone the numbers but the grades and the qualifications in the whole thing.
Accepting that the College of Art is in a bad way and therefore there has to be a fair amount of control, I would go along with Senator Honan there. I have not proposed deleting the section. I am leaving most of the control there but I am omitting the numbers. Numbers in any case are governed by the available finance. I am leaving with this board the right to make minor adjustments in their dispositions and their hiring of staff, some of whom may be temporary, for a term or for a year. I am giving some little discretion to this board. I cannot possibly see any third-level institution being subject to the control by the Department of Education that is provided here. That is unthinkable. I have checked quite a few institutions abroad, England and elsewhere, and such control is never exercised unless the body come out and say: "This is an institution run by the Department of Education; it is a subsidiary of it, a Civil Service-run job." I object very strongly to trying to say that an institution is free and hamstringing it in every way. Let us have honesty in this. If the State wants to control something and have it in a Civil Service department, have it that way but do not be misleading the public.
There is no question of misleading anybody. I pointed out a number of points here the last time I spoke as to where similar provisions were to be found. I am not certain if Professor Quinlan said that it did not apply to the Higher Education Authority Bill but, of course, it does. If he reads section 14, subsection (1), he will find that:
An tÚdáras 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
which in essence is the same thing as is here. In fact the reason why it was put down in a different form here was that we had such a long argument as to what "such" and "so many" meant on the Higher Education Authority Bill that I decided to put it down in the subsection here in plainer language. This section does not interfere with the autonomy of this institution any more than the fact that the universities cannot create statutory posts without submitting the statute to the Oireachtas. I feel the various matters in this section are needed and that I have given a reasonable explanation as to why they are there.
I must object and say the Minister is perhaps unintentionally but definitely misleading the House with regard to the position of universities. Statutory appointments constitute less than half the staff of the universities and in modern times constitute a much smaller fraction altogether. If we take University College, Dublin, the vast bulk of the assistants to the college, lecturers, demonstrators, et cetera, are totally at the discretion of the college, provided the college has the money to pay them.
Would the Senator say in what way I intentionally or unintentionally misled the House when I referred to the requirement in relation to the creation of a statutory post in the university that a statute had to be placed before the Houses of the Oireachtas?
Because it was conveyed that this was comparable to the control that was here, whereas here even a temporary assistant who gets £1 an hour for 20 hours in the year could not be appointed by this board unless the Department of Education sanctioned him and sanctioned his number, his grade, his qualification, tenure of office and remuneration—all this for a man getting a salary for a part-time post of one hour a week for one term. We are saddled with this cumbersome statutory procedure for some senior posts, but Trinity College, which we all recognise as a university here, has no such provision. The Minister has no such control and no one in his sane senses in planning for the future would advocate that such cumbersome and outmoded procedures from 1908 should hamstring our development in the future.
Consequently I appeal to the Minister to meet us part of the way. For the fourth successive Bill on education here the Minister has, I might say, treated this House with contempt. Our efforts to contribute something to it have met with this stone wall that the Minister has all the wisdom and there is no point of value we can make.
Amendment put and declared lost.
Amendment No. 27 not moved.
Question proposed: "That section 17 stand part of the Bill."
I would ask the Minister if he is totally satisfied with the drafting of this section. Subsection (5) of the section reads:
An Bord may appoint such other officers and servants as it shall from time to time think necessary for the due performance of its functions.
On the other hand, subsections (6) and (7) taken together have the effect that An Bord may not appoint such other officers and servants as it shall from time to time think necessary unless the Minister says it can. In other words, there is a conflict, or at least a potential conflict, between subsection (5) and subsections (6) and (7). This is because they are separate subsections and because what appears in subsections (6) and (7) are meant to be qualifications of subsection (5) but in effect appear totally independent of it. If we look, for instance, at subsection (4) we will find, quite properly in drafting terms, that the conditions which apply to the offices of director and registrar are written into the same section as that which deals with their appointment. It seems to me that if one is to be logical in this and if one is to avoid a conflict between the board and the Minister as to the interpretation of sections 5 to 7, inclusive, one would have to redraft section 5 roughly along the following lines:
An Bord may appoint such other officers and servants as it shall from time to time think necessary for the due performance of its functions and such officers and servants shall hold office on such terms and conditions as may be approved by the Minister with the consent of the Minister for Finance.
The point I am trying to make is that the disjunction between these paragraphs, the division into three separate subsections, is ambiguous. I would not put it past a board in certain circumstances to take the right conferred on it under subsection (5) as unqualified by the statements made in subsections (6) and (7), because these statements are not made as qualifications on the right expressed in section 5.
It seems to me that Senator Horgan is quite right in relation to the question of numbers in subsection (6). It is at least conceivable that the remainder of subsection (6) could stand with subsection (5) and that subsection (5) would be read as qualified by the subsequent requirements of subsection (6) in relation to grades, qualifications, tenure of office and remuneration of the officers. But it clearly seems that there is a conflict where you have one subsection solemnly setting out that the board may appoint such other officers and servants, without any qualification there as regards numbers, as it shall from time to time think necessary. The only qualification in that subsection, subsection (5), is that An Bord is required to regard the appointments as necessary for the due performance of its functions. If An Bord comes to the conclusion that it is necessary for the due performance of its functions, according to this subsection they may then appoint such other officers and servants as they think fit. There is no qualification there to say: "subject to the overriding authority of the Minister as regards the numbers of such other officers and servants as may be appointed." I can see, although I would not be entirely confident about the argument, that it could be argued that the remainder of the modifications or qualifications in subsection (6) would have an overriding effect so far as subsection (5) is concerned, but clearly there is conflict between the two subsections so far as the question of numbers remains in subsection (6).
I would interpret subsection (6) as meaning that the board must set out the establishment for the college and that this in general terms must be approved by the Minister, but the actual appointment within that establishment is a matter for the board. They would have an establishment providing for 20 professors, or whatever it might be, and various other officers. They would not necessarily fill all these appointments all the time but they would have the power within the limits of the establishment to appoint such officers as they thought necessary from time to time. Certainly that is how I would interpret this.
I wonder would the Senator feel very confident if he was arguing the case before a court?
I tend to agree with Senator Ryan on this. The director and registrar would be appointed by An Bord; and the other officers and servants, apart from the director and registrar, would also be appointed by An Bord. In sections 6 and 7 the limitations appear and the numbers must be subject to the consent of the Minister for Finance.
However, as the matter has been raised here I shall have a look at it before Report Stage to see whether the drafting is correct.
I am just trying to save the Minister trouble here against the possibility of confusion and ambiguity arising from the isolation of the power conferred in subsection (5) from the qualifications which it is felt are necessary.
I will have another look at it.
Question put and agreed to.
SECTION 18.
I move amendment No. 28:
In line 34 before "through" to insert ", not being a function described in paragraphs (a), (b), (c), (d), (e), (f), or (i), of subsection (2) of section 5 of this Act".
The purpose of this amendment is to remove the right of the board to act through its officers and servants in relation to certain functions. Section 18 provides—it is a short two-line section —that An Bord may perform any of its functions through or by any of its officers and servants duly authorised by An Bord in that behalf. I think this is an important section and there is an important principle involved here—"An Bord may perform any of its functions." The first thing we have got to see is what are the functions, any of which may be exercised according to this section through the officers and servants.
Here again I want to emphasise, without meaning any disrespect to them, but because it is important, the words "and servants duly authorised by the Board in that behalf". The functions of the board are set out in some detail in section 5. They include the establishing and carrying on of schemes of education of such scope and extent as it may determine on arts, craft and design. Here, under section 18, we are saying, if we pass it, that the board need not regard itself as responsible for the operation of the function of establishing and carrying on schemes of education, but that it may delegate that function to its officers and servants. There is no definition in the definition section of what an officer of the board is. Subsection (3) of the definition section says that "a reference in this Act to an officer of the Board includes a reference to a member of the academic staff". That does not exhaust the possibilities of what an officer of the board may be. There is no definition whatever in the definition section, even by reference, as to what a servant of the Board may be.
It may very well be that in the ordinary usage of the word the porter or doorman could be regarded as a servant of the board. Yet according to section 18, translating that into the context of section 18, the porter or doorman, the boy who goes out to buy the sandwiches at 11 o'clock, may be delegated as the person to carry out the functions assigned to the board under section 5, one of which is establishing and carrying out these schemes of education. I am simply giving that as an illustration. Of course, there are a whole lot of other functions, all of which it would be equally ludicrous to assign to a servant of the board, or in any event to some servants of the board. Yet that could be done if we allow this legislation to pass as it is proposed here.
The principle involved in this is that the academic work of the board should only be done by members of the academic staff. Where the question of teaching and conducting courses, which are part of the functions of the board under section 5, are concerned, those should only be operated and carried on by the members of the academic staff with the appropriate qualifications. In the last section which we were discussing the Minister retains the power to fix what those qualifications are. That is the question of principle involved in the amendment which I am proposing: that it is not good enough, no matter what the reason may be, whether it is a case of convenience in the drafting of the legislation or whether it is a matter of administrative expedience, to draft a short global section of this sort which gives the board discretion of such a wide nature to delegate its authority to anybody who happens to be an officer or a servant of the board, without taking the precaution of ensuring that teaching and matters connected with the academic side of the functions will be carried out only by the academic side of the staff.
This is a badly drafted amendment but I think I know what was in the proposer's mind. I certainly could not accept the amendment in its present form because, as the Minister will no doubt point out when he is replying, it could be taken as preventing members of the academic staff from engaging in academic activity in the college. This is something which I think the Minister would not allow and which I do not think the proposer had in mind.
It seems to me that what the proposer of this amendment wants to do is to prevent servants of the board, who by definition do not include members of the academic staff, from carrying out academic functions under the board. Plainly, this would be met by amending the amendment to include the definition of the word "servant". Then we would have the problem that the board's ability to delegate to its servants non-academic work would be interfered with. That is a situation which I think the Minister could not accept.
I think that what this amendment is aimed at in a rather clumsy way is the fact that under this section, and indeed under the Bill as a whole, the same confusion between administration and academic matters is perpetuated as existed when the college was under the direct control of the Department of Education. It seems to me to be extraordinary that administrative and academic functions should be jammed together in the same body of people and that there should be no disjunction between groups of people carrying out such widely differentiated functions. This existed under the old arrangement and the new arrangement perpetuates it. This amendment, unacceptable though it is, is a rather incoherent attempt to point to this confusion.
I think we should look on this in a reasonable manner. The facts are that the board could not carry out its functions at all unless it had the power to delegate these functions. Senator O'Higgins mentioned a number of instances in which a board might delegate powers or its functions in what he described himself as a ludicrous manner and I would agree with him. I feel that we should remember that the officers and servants cannot do anything in the sense that we are discussing here except they are duly authorised by the board to do it. Surely it would be extremely difficult to visualise a board which would delegate functions to people who quite obviously were not suited for carrying them out. Such a board would not be very long acceptable either to the college itself or to the community.
Senator O'Higgins mentioned section 5 (2) (a):
... establishing and carrying on schemes of education of such scope and extent ...
How could these possibly be carried on without delegating their functions to the officers of the board? I have been accused both here and in the other House on a number of occasions of being unwilling to give full autonomy to the board. Nevertheless, those who accuse me of circumscribing the autonomy of the board have at the same time put down amendments which in many respects restrict the freedom of it. This, in my view, is one of them.
The amendment would tie very much the hands of the board in the matter of delegating its duties to officers and servants. For example, is there any reason why An Bord should not delegate to one of its officers the functions of organising exhibitions of students' work which is in section 5 (2) (f)?
I have no hesitation in saying that I am convinced that it should be left to the discretion of the board to decide what functions it will delegate. They must use their good sense to ensure that none of its officers or servants would usurp its functions. If any of its officers or servants attempted to usurp the functions of the board then the board has a cure for this in its own hands. We must accept that it is unreasonable to suggest that any responsible body such as we would hope this board would be would act in the manner described by some Senators in relation to this amendment.
Does the Minister not see that at least the difficulty to which I adverted does exist in the drafting of this legislation? The fact that this amendment is moved does not in any way question the reasonableness of any more that may come into existence. Our job here is dealing with the legislation. It is not dealing with the establishment of the board as to its personnel. That matter is going to be dealt with later. What we are doing— or should be doing—is examining carefully the terms of the legislation which the Minister is proposing to see if that legislation is such as is likely to lead to difficulties or not.
I appreciate what Senator Horgan said with regard to the amendment that possibly it might have been better to draft the amendment in another way. I should like to suggest to the Minister for consideration, at any rate, between now and Report Stage that the wording of section 18 might at least be altered so as to make it clear that the board could delegate its functions only to the appropriately qualified officers or servants. I think some modification of that sort would possibly meet the difficulty which this particular amendment envisaged.
Surely this is merely saying that the board shall only act in this respect in a reasonable manner? Is this not ridiculous? How far can one go to try to impose on a board that they will act in a reasonable and sensible way? It is all very well to say that an art course shall not be left to the doorkeeper. It must be left to an academic member of the staff. But, of course, not all members of the staff would be suitable for conducting all courses. If you are really to follow this amendment out, you have to say that the professor of such and such a thing shall only be allowed to conduct such and such a course, and another kind of professor shall only conduct another course. In other words, you are going to spell out exactly what the board may do and you are going to do the very same thing that many of the Senators who have put down amendments have been crying out about. You are going to try to run the college by this Bill and leave no discretion to the members of the board. What you are really saying is that the board must act in a reasonable way and if you are going to put that into the Bill then it is making the whole thing ridiculous.
Amendment, by leave, withdrawn.
Section 18 agreed to.
Sections 19 and 20 agreed to.
SECTION 21.
Question proposed: "That section 21 should stand part of the Bill."
I just want to ask the Minister if it is open under section 21 for the committees to consist of outsiders or must they be members of the board?
It is open to outsiders as well.
A committee of An Bord shall consist of such number of members appointed by An Bord as it thinks proper and the members shall consist of or include members of An Bord.
Provided the board appointed them, outsiders could be on the committee.
I can see that a subcommittee may consist of members of the board and that you can have a subcommittee which will be, so to speak, a mixed one which will include outsiders and members of the board but can you have a subcommittee consisting entirely of outsiders?
I do not think so. I changed that as a result of discussion in the other House. Originally I think the section would have excluded outsiders altogether. It is much better in the manner in which it is now.
Question put and agreed to.
SECTION 22.
Question proposed: "That section 22 stand part of the Bill."
On section 22, I should like to refer to an earlier point made by the Minister. The Minister has said —and I do not doubt him at all— that he has had a great raft of advice on the question of the College of Art, more so, I suspect, than on many other things with which he is connected. We have problems about this. We have not been told what kind of ideas the Minister has formed about the College of Art as a result of all the advice that he has received. This is particularly relevant on this section. On 11th November the Minister told us in response to queries—and we are very grateful for the information—the reference is Volume 71, No. 11, column 1195—about the appointment of Mr. Dáithí Hanly as architect for the new college building at Morehampton Road. He added, at the same column:
... He will be assisted by the provision of an educational brief by art and other educational experts.
That is all very well and we are all grateful to the Minister for giving us this information, which we asked for. I am not blaming the Minister for giving this information. No doubt he recognises that giving information almost inevitably prompts further questions. A further question that it prompts in this connection is in relation to section 22. What will happen if the ideas of Mr. Hanly and of his unfortunately anonymous experts who are designing this College of Art and Design should differ at any point, or even substantially, with the conception of a College of Art and Design that An Bord may develop? In this section you are giving An Bord a power to give physical shape to its own concept of what a college of art must be.
The Minister has already told us that it will not be An Bord's concept but the concept of Mr. Hanly and of his art and other educational experts. This strikes me as being an acute derogation from the powers of An Bord under this Bill. What will be the physical relationship between An Bord and Mr. Hanly, if any? What will be the contractual relationship between An Bord and Mr. Hanly, if any? Is it going to be like some sort of administrative eternal triangle, with An Bord, Mr. Hanly and his panel of experts and the Department of Education at the three corners? There is serious need of clarification on this point.
In relation to what the association will be between Mr. Hanly and An Bord, as I have already pointed out to the Senator, there is a committee helping Mr. Hanly at the moment with his work in designing the college. I expect that when An Bord is appointed they will also have consultations with Mr. Hanly. The Senator may be interested to know that when I discussed the matter with Mr. Hanly a considerable time ago, I asked him to consult with the students before coming to any final conclusions in relation to the design, et cetera, of the college. I have no doubt that he will do that, when he reaches the stage when he thinks this is appropriate.
I am very grateful to the Minister for his assurance, in so far as it goes. Would he not agree that it is proper under this section 22 that immediately after the creation of An Bord Mr. Hanly should be brought into a contractual relationship with An Bord, and not with the Department of Education?
Yes. An Bord will assume whatever functions I have, and in that sense he will enter into a contractual relationship with An Bord; that is, whatever relationship he has with me now he will have with An Bord.
Would this come under section 28?
Yes, that is correct.
Senator Horgan might be interested to know that a limited account of the research done by the architect and the consultants appeared in the Irish Times of 28th October, 1969.
Question put and agreed to.
SECTION 23.
Question proposed: "That section 23 stand part of the Bill."
Is the Minister satisfied that securities can be accepted under section 23?
I have not had the opportunity of looking that matter up yet.
Question put and agreed to.
Section 24 agreed to.
Amendment No. 29 not moved.
Section 25 agreed to.
Amendment No. 30 not moved.
Sections 26 to 32, inclusive, agreed to.
Title agreed to.
Bill reported without amendment.
Report Stage ordered for Wednesday, 24th November, 1971.
The Seanad adjourned at 9.30 p.m. until 3 p.m. on Wednesday, 24th November, 1971.