Seanad Éireann debate -
Wednesday, 24 Nov 1971

Vol. 71 No. 14

National College of Art and Design Bill, 1971: Report and Final Stages

Mr. O'Higgins

I move amendment No. 1:

In page 5, before "be" in line 29, to insert "if An Bord so requests and the Minister thinks fit to do so".

The purpose of this amendment is simple. It is merely to put the position of the members of An Bord on a par with that of the chairman. In section 6 (2) (a) there is a provision that the chairman of An Bord shall be appointed from time to time, as the occasion requires, by the Minister. If An Bord so request and the Minister thinks fit to do so, he may be removed from the office of chairman by the Minister.

That is quite simple and easy to understand. The chairman of An Bord may be removed from office, provided two things happen: first, that An Bord request that that should be done and, second, that the Minister thinks fit so to do. It is necessary to point out in this connection that the members of An Bord, in addition to the chairman, are all appointed by the Minister. Consequently there does not seem to be any obvious reason why there should be any differentiation at all in the treatment of what I might describe as ordinary members of An Bord and the chairman when it comes to a question of removal from office.

In section 6 (5), which this amendment seeks to amend, we find that instead of ordinary members of An Bord being treated in the same way as the chairman, the Minister has power of removal without any request being made to him by An Bord. All this amendment seeks to do is to insert in subsection (5) exactly the same words as are used in subsection (2) (a). In other words, subsection (5) should read:

A member of An Bord shall be appointed by the Minister and may if An Bord so requests and the Minister thinks fit to do so be removed from office by the Minister.

That would put the removal of an ordinary member in exactly the same position, so far as this legislation goes, as the chairman. Unless there are very strong reasons to be advanced by the Minister as to why that should not be the case, it would seem that ordinary justice demands that there should be equal treatment for all members of An Bord. The chairman is appointed in exactly the same way, and up to the time of his appointment as chairman, he is in exactly the same position as any other member of An Bord.

Subsection (2) (a), which I quoted, deals with the appointment of chairman; subsection (2) (b) sets out the manner in which and the reservoir out of which the chairman should be appointed: he shall be appointed from among the members of An Bord other than the director and the members nominated by the staff and by the students. Apart from the fact that he has, by virtue of subsection (2) (b), become chairman by nomination from among the members, limited in the way that I have mentioned, he is in exactly the same position as any other member of An Bord. He has been appointed in the same way, and I cannot see why there should be any distinction between his treatment and that of any other member of An Bord when it comes to a question of removal from office. If it is to be a requirement of removal from office that the request in the first instance should be made by An Bord relative to the chairman, then the request should also be made by An Bord relative to any other member of An Bord. That is all this amendment seeks to do.

Minister for Education (Mr. Faulkner)

There are two different things involved here. One is the election of the chairman. He shall be nominated for appointment as chairman of An Bord. There is a difference between the removal of the chairman from the office of chairman and the removal of a member from An Bord.

I should like to refer back to a discussion on Committee Stage. When Senator Kelly pointed out that while a member was being forced under section 9 to declare his interest in relation to certain matters, there was no provision for any sanctions in the Bill should he fail to do so. In my reply, I pointed out that the greatest sanction of all was available to me in section 6 (5), through the power given to me to remove him from office. The amendment which is now proposed would take this power from me. If the Minister is to appoint the member, it should not be for the other members to decide whether he should be removed from An Bord.

I should like to refer to the other point raised by Senator O'Higgins, that is the provisions of section 6 (2) (a). The chairman is appointed on the nomination of An Bord and it is logical enough that a request for his removal from the office of chairman should come from An Bord. However, I should like to point out that acceptance by me of such a request would not mean his removal from membership of An Bord. Of course, if he were for any reason removed from membership of An Bord, he would automatically cease to be chairman.

The basic point I want to emphaise here is that the chairman is appointed on the nomination of An Bord. It is therefore reasonable enough that they should have something to say in relation to a request for his removal. Again I should like to state that it does not necessarily mean his removal as a member of An Bord. Here we are dealing with two quite different things.

One of the main reasons why I want to keep the power in the hands of the Minister in relation to this subsection is because, as I have stated in my reply to Senator Kelly in regard to the section in which he was interested at the time, the greatest sanction of all was available to me in section 6 (5).

Mr. O'Higgins

The Minister is, of course, right in making the distinction which, perhaps, I myself should have made when I was moving the amendment—that subsection (2) (a) refers to the removal of the chairman from the office of chairman, whereas subsection (5) refers to the removal from membership of the board. There is no fundamental reason for distinguishing the procedure in the two cases. In the first case the Minister mentioned that because the members of the board were concerned in the election of chairman, that is, election in the sense of nominating him for appointment as chairman, therefore, they should have some say in his removal. If that argument were to be accepted as valid, exactly the same process should go down the line in relation to the nomination of various members of the board. The Minister should be arguing logically that the staff or the students who are concerned with nominating members to the board would be entitled to be consulted before the Minister removed any people who had been appointed on the nominations of the staff or the students as members of the board.

The Minister's argument is valid in relation to the chairman on that ground. If he were to be logical he would be tying his own hands seriously in relation to certain members of the board because he should see that the nominators of staff and student members should be entitled to consultation before their removal. The Minister's power would not be whittled down very much if this amendment were accepted, though his power would be limited in certain respects because it would be dependent on the request of the members of the board.

By making it so dependent there would be a built-in safety measure against a possible collision course as between the Minister and the board as a whole. If the position is allowed to remain as it is under the section, it is conceivable that the Minister, in defiance of the wishes of the board, may decide to remove a member of the board. The Minister on the one hand and the board on the other are set on collision course, whereas if this amendment were accepted there would be a built-in safety measure which would guard against this. The Minister would be acting at the request of the board. However, if the Minister has set his face against accepting this amendment, obviously I will not get it carried here.

Amendment, by leave, withdrawn.

An Cathaoirleach

Amendment No. 3 is an alternative to amendment No. 2, so the two may be taken together.

Mr. Horgan

I retain the right to separate decisions?

An Cathaoirleach

Yes.

Mr. O'Higgins

I move amendment No. 2:

In page 6, to delete section 11, lines 40 to 44, and substitute:

A member of An Bord shall be disqualified from holding and shall cease to hold office as such member if he

(a) is adjudged bankrupt, or

(b) makes a composition or arrangement with creditors, or

(c) is sentenced by a court, established under the Constitution and of competent jurisdiction, to suffer imprisonment or penal servitude on conviction of an offence in respect of which the Minister certifies in writing that in his opinion its nature is such as to render the member unsuitable for holding office as a member of An Bord, or

(d) is declared, by resolution of An Bord, to have failed to make a disclosure which he was required to make under section 9 of this Act.

This amendment deals with section 11. The easiest way to explain it is to quote section 11 first and to point out the points of agreement between section 11 and the amendment and the points at which new matters are introduced into the amendment which are not in section 11. One provision in section 11 is proposed by this amendment to be dropped. Section 11 states:

A member of An Bord shall be disqualified from holding and shall cease to hold office as such member if he is adjudged bankrupt, or makes a composition or arrangement with creditors, or is sentenced by a court of competent jurisdiction to suffer imprisonment or penal serritude or ceases to be ordinarily resident in the State.

This amendment seeks to vary that section in a number of respects. It proposes that instead of section 11 there should be a new section which would read:

A member of An Bord shall be disqualified from holding and shall cease to hold office as such member if he

(a) is adjudged bankrupt,

That is already contained in the section.

(b) makes a composition or arrangement with creditors,

that is also contained in the section.

(c) is sentenced by a court, established under the Constitution.

That is a variation from what is in the section. The reason for that it seems is that the reading of the section as it stands is wide enough to refer to a court of competent jurisdiction anywhere in the world, whereas in the amendment it is proposed to limit that to courts within this jurisdiction, that is, courts established under the Constitution. That seems desirable having regard to the consequences of a sentence being passed by the court. It is possible to conceive a situation where a person might be sentenced by a court somewhere abroad in respect of an offence committed abroad, whereas the matter constituting the offence for which the person was committed might not be an offence at all under our law or if dealt with by courts under our jurisdiction. It seems to be of some importance to limit the application of this section to a sentence passed by an Irish court operating within the jurisdiction here. That is the first material difference between the amendment and the section.

The second material difference also relates to the operation of the court. The section I have read out referred to "sentenced by a court of competent jurisdiction to suffer imprisonment or penal servitude". It stops there. This was argued to some extent on Committee and it is necessary to refer briefly to what is involved in the argument here. If the matter is left simpliciter as it stands in the section, to refer simply to a sentence of imprisonment or penal servitude, it may well be that such a sentence might be the consequence of some act or action or attitude of the defendant which in the eyes of the Minister, of An Bord and of the general public would not be such as in any way to make the member of An Bord unsuitable to continue acting as a member of An Bord.

Senator Kelly, when dealing with this on Committee Stage, mentioned as an example of what he had in mind the possibility of a person being committed to prison for contempt of court. That could arise in a variety of ways which would generally be regarded as entirely honourable and praiseworthy on the part of the person so sentenced.

You can think for a moment of the standards of journalism, journalistic etiquette and ethics in this country, where it would be regarded, as I understand it, as a serious breach of the professional code of journalists if a journalist were to disclose in evidence his source of information. We had an example in the "7 Days" inquiry. If a journalist were required by the court to disclose his source of information and refused to do so he would almost certainly be held to be in contempt of court and could be sentenced to imprisonment If that journalist happened to be a member of An Bord the consequence of that conduct on his part, which would be regarded, I think, by everyone as thoroughly honourable and merely upholding the standards of his profession, under the section as it stands it would entail automatic disqualification from membership of the board.

I am sure other Senators could think of other examples. One could think of some of the offences under the traffic code, for example. I do not speak with any great authority on this but I recall an occasion where disqualification of a driving licence was imposed for a parking offence. I do not remember, if indeed I ever knew them, the facts of the case; I just have a recollection of the publicity associated with it. I am not in any sense being critical of the decision of the district justice who knew all the facts and decided that was a proper penalty to impose. The point I am making is that the ordinary person would probably never have been aware that it was open to the discretion of the court to disqualify a person from driving by reason of an offence which, by and large, people would regard as a minor traffic offence, that is, an offence relating to parking even if it were found to be dangerous parking. It may very well be that elsewhere in our laws, either in the traffic code or in any other of our legislation, there could be cases where discretion is vested in the court to impose a prison sentence and where a prison sentence could be imposed, although it would not be within the general knowledge of the public, or of the Minister for that matter, that the offence, infringement, breach of regulation, whatever it might be, was one which would have as a possible consequence a prison sentence. Under this section, as it stands, any prison sentence would automatically entail disqualification from membership of the board.

This amendment proposes to remedy that as best it can. It may be that the drafting could be improved upon. If the Minister has any suggestions to make with regard to the drafting and if he is agreeable, I would be prepared to have the amendment further amended in order to meet any points the Minister might raise. The proposal for remedying the situation which I have been describing is that we should provide for disqualification if the sentence is one of imprisonment or penal servitude where it is a conviction for an offence in respect of which the Minister certifies in writing that in his opinion its nature is such as to render the member unsuitable for holding office as a member of An Bord. In other words, we are seeking in this amendment to safeguard in some way against the type of situation where a perfectly honourable man, who acted honourably and who is acknowledged to have acted in the best interests and in accordance with the best standards of his profession, is jailed for contempt of court. Such a man should not face disqualification from membership of the board. In that case the man obviously should not be put off. We are trying to include a safeguard for a situation such as that by providing that this particular provision in relation to a sentence of imprisonment will act only as a disqualification for the member, if the Minister is satisfied and certifies in writing his opinion that the offence was such as to render the member unsuitable.

The next portion of this amendment is also a new one which does not appear in section 11. Paragraph (d) reads:

is declared, by resolution of An Bord, to have failed to make a disclosure which he was required to make under section 9 of this Act.

The Minister will recall that section 9 of the Bill is the section which requires members of An Bord to make disclosure if they have an interest in any company or concern with which An Bord proposes to make any contract, or any interest in any contract which An Bord proposes to make. Section 9 imposes a statutory obligation on a member in that position to make disclosure of his position. But section 9 does not impose any sanctions whatever if a person ignores his statutory obligation. In fact, it is merely a pious aspiration. It has no teeth. There is no sanction or penalty if a person ignores his statutory obligation. The Minister may meet that particular objection by saying "But I have power to remove such a member from the Board". The Minister may have power, but he may not exercise it. We have got to face up to that kind of situation. I am not for a moment casting any aspersions on the present Minister. I have no particular Minister in mind. But a Minister, just as a member of An Bord or anyone else, may fail in his duty and may simply do nothing about it. A person who then acts in breach of a statutory obligation solemnly imposed by the Houses of the Oireachtas has no penalty or sanction imposed on him.

In this amendment we are saying that a person who acts in that way, who deliberately refuses to make disclosure of a matter which he is bound to disclose under section 9 of the Bill, should automatically be removed from membership of the board once the board declare by resolution that such a person has failed to make the disclosure which he should have made.

The last point I wish to make is this: in the comparison between the section and the amendment it is necessary to point out that one of the reasons for disqualification in the section is that when a member of An Bord ceases to be ordinarily resident in the State that particular cause of disqualification is not repeated in the amendment. It is deliberately omitted. There were a number of arguments advanced on Committee Stage as to why any such cause of disqualification, particularly in relation to this board, was quite appropriate. It might very well be that it would be greatly to the advantage of the National College of Art, or of the students there, that some person who might reside abroad, across the Border, in England, or in Europe should be a member of An Bord. There seems to be no reason why mere non-residence in the State should be an automatic reason for forfeiture of office. I agree— the Minister will accept this—that it would not be desirable to continue that membership in every case of a person who has been appointed a member of a board and who then goes to reside abroad. If a person was not able to come to meetings or properly to discharge his functions as a member of the board, then I would agree that it would be better that he or she should cease to be a member. The Minister has the remedy for that situation, under section 6 which they were discussing a few minutes ago. The Minister would be enabled to remove that person from membership of the board. The only difference is that the Minister wants to impose automatic disqualification under section 11, if a person eases ordinarily to be resident in the State rather than have the position exist where the Minister must do something to get rid of a member who, because of non-residence in the State, is not able to give service to the board or to function properly as a member of the board. I would prefer to leave the situation so that the intervention of the Minister in such a case is required. The Minister can get the advice of the board on the matter but he is required to make up his mind whether or not the person who has ceased to reside ordinarily in the State has ceased to pull his weight as a member of the board and is thereby unfitted to continue to be a member. For those reasons we have not in this amendment repeated that particular portion of the section. I would urge the Minister to give serious thought to the matters contained in this amendment. The Bill in any event is going to be amended so that it is no particular inconvenience to the Minister to accept other amendments to the Bill.

Mr. McDonald

I wish to support Senator O'Higgins on this amendment. He has made a very clear and strong case on this amendment. I believe that in order to improve the Bill we need to have things very clear-cut. In this piece of legislation, which has been the cause of misunderstanding and trouble in the past, I would sincerely ask the Minister to listen and take heed of the very strong and excellent case that Senator O'Higgins has put forward on this amendment.

Mr. Horgan

I rise to speak in broad terms against the first amendment and in favour of my own. I speak against the first amendment with some regret because parts of it, like the curates egg, are excellent. There are some difficult and awkward thing in the amendment which I do not think the Minister should accept. First of all, I want to deal with this amendment and then come to deal with the oen in my name and that of Senator Robinson.

In so far as the first amendment is concerned, it seems to me that paragraph (a) is excellent, paragraph (b) is excellent and the first line of paragraph (c) is also excellent. I have been very impressed by Senator O'Higgins's remarks about the possibility of persons being accepted by the courts other than the courts established under the Constitution. Given the times in which we live the case he made is a good one.

On the other hand, I am not altogether satisfied with two further points in this amendment. The first is that point in paragraph (c), which enables the Minister to certify in writing that in his opinion the nature of a certain conviction is such as to render a member unsuitable for holding office as a member of An Bord, it putting an incredible burden on the Minister. Certainly in the unlikely event that I should ever become Minister for Education this is the sott of burden I would be very very slowro accept. It is asking the Minister to make a personal decision about people which may or may not—I stand open to correction on his—render him liable to prosecutions in the courts. I do not know whether, if a Minister certified in writing a person's unsuitability for membership of An Bord by virtue of being sentenced in a court of law, that person might not have some remedy against the Minister.

Mr. O'Higgins

It would be his own opinion which the Minister would be certifying.

Mr. Horgan

I withdraw that particular remark on the basis of superior legal knowledge. But even if the Minister is in no respect liable to persons whom he may certify on foot of his opinion, it is a terrible burden to have to put on a Minister to make a second judgment on a person who has already been judged by the courts. For this reason, I oppose that part of the amendment. I would have been more ready to support an amendment such as that which was introduced in the other House which attempted to make conditions for membership of An Bord in regard to prison sentences which were exactly equivalent to those which operate on Members of this House and of the other House. In other words, it is quite well known that members of this House and the other House can suffer imprisonment for up to six months without having their status affected in the slightest. An amendment which would have included this kind of provision would be far more acceptable to the Government. I find it very difficult to accept the amendment in its present form which puts on the Minister the onus of making a judgment on a man who has already been judged by the courts of the land. This is unfair to the Minister. It would be unfair also to the person concerned.

I also have some doubts about paragraph (d) which reads:

is declared, by resolution of An Bord, to have failed to make a disclosure which he was required to make under section 9 of this Act.

There is a certain ambiguity with regard to the phrase: "by resolution of An Bord". It is not at all clear how such a resolution would be framed or would be arrived at, or whether it would have to be an overall majority of the board who would vote in favour of such a resolution, or whether a simple majority of those present would be sufficient to pass the resolution. On the grounds of vagueness, this particular paragraph is deficient. I believe very strongly that there should be some sanction against the person who fails in the disclosure which he is asked to make under section 9. I recognise that this amendment is an attempt to introduce the sanction, but it raises more problems than it solves in the way in which it is drafted. I would only very reluctantly leave it to the Minister's discretion to decide whether such a case, in fact, existed, and whether such a person should or should not continue to be a member of the board.

In this amendment we seem to be trying to strike a balance between giving certain situations force of law and creating other situations in which the Minister's discretion will be operative. All the debates which I have sat through in this House for the past couple of months have tended to narrow down on this point: to what point do you give a Minister discretion to do certain things? to what point do you take that discretion away from him and write sanctions into the law of the land?

The amendment which is down in my name and that of Senator Robinson is an attempt to give the Minister discretion which, in the present drafting he would not have. I should say at this point that when I come to move my amendment—I hope to move it separately from the first amendment—I shall be asking the House to amend the amendment to correct what is, in essence, a drafting error, which is the responsibility of nobody but myself, but which will make clearer the case which I want to put before the House. I propose to ask the House, when this happens, for leave to amend the amendment so that the words which stand to be deleted are only those which follow the word "servitude". had meant in my amendment to delete only the words "ordinarily resident or ceases to be ordinarily resident in the State". My drafting error included the words "penal servitude" which are really irrelevant to the case which I want to make.

The leader of the House may see fit to refuse leave to amend this amendment. I honestly feel that he would not add greatly to the reputation of the House if he did so. If necessary, I would be prepared to argue until the cows come home that there is no difference between imprisonment and penal servitude or that anybody who is sentenced to penal servitude necessarily is also sentenced to imprisonment and therefore to argue in support of my amendment. I shall speak from this point on as if I had been given the leave of the House, which I hope will be given to me, to amend the amendment in the sense that I have suggested.

I would go even further and say that if leave to amend the amendment is refused I would perhaps even suspect the Government of attempting to dodge a politically awkward situation on a technicality.

An Cathaoirleach

At this stage it might be as well to point out that it rests with the Chair whether leave is given under Standing Orders.

Mr. Horgan

I apologise. I should have said I would ask you for leave to amend the amendment.

An Cathaoirleach

The Chair is expressing no opinion on the matter. It is suggesting that the debate should carry on.

Mr. O'Higgins

It would be interesting if this would save the Chair from the Senator's suspicions in the event of the Chair refusing to allow the amendment to be amended.

Mr. Horgan

The Senator never entertains suspicions of the Chair. The point I wish to make by the amendment which I wish to introduce is simply one of clarification. I would underline, first of all, the reasons given by Senator O'Higgins for his omission of the phrase "or ceases to be ordinarily resident in the State" in the amendment which he has put before the House.

During the Committee Stage debate here, Senator Quinlan asked the Minister what the particular import of this phrase was. I confess that we did not get a very satisfactory answer. My position is that I do not know what this phrase means. I do not know what the phrase "ordinarily resident in the State" means. If I am assured by the Government that this phrase does not operate to exclude from membership of An Bord people who are living in the North of Ireland I will, with reluctance, withdraw the amendment, with reluctance because I believe, like Senator O'Higgins, first of all that the geographical place where a person may happen to live should not necessarily be a decisive factor in his membership of the board as the section currently makes it. There are probably very many people who live outside the country whose membership of such a board might be useful.

One of the many points of criticism which has been made by students in the institution which is now called the College of Art is of the cosmopolitan artistic tendency which threatens to take over this country. I have some sympathy with this feeling which has been expressed by the students. The Minister is really tying his hands to a far greater extent than he should in making this a matter of law and not a matter of ministerial discretion. To refer back to the earlier amendment, if he is making non-disclosure under section 9 a matter of ministerial discretion, how much more should he not make residence also a matter of ministerial discretion? The place of residence it seems to me, is altogether trivial in terms of qualification for membership of An Bord compared with non-disclosure under section 9. The Minister has every reason to untie his hands in this matter and to give himself a decent leeway on it.

As I said, generally speaking, I would prefer that these words "ceases to be ordinarily resident in the State" were not in the Bill at all in order to give the Minister complete freedom to choose people from wherever he likes to act as members of An Bord. At another level, I would be reasonably happy to see the phrase remain in position provided I was assured that it does not affect the position from north of the Border. If the Minister or anybody else on the other side of the House tells me that this section acts to exclude people from north of the Border I would really feel that I must oppose it.

Finally, one thing occurred to me, and that is to ask the Minister how he would propose to define "ordinarily resident in the State". I have already asked him to define "the State". I should now like him also to define "ordinarily resident". I gather that the Revenue Commissioners have a rather complicated sliding scale for tax purposes to decide whether persons are ordinarily resident here of not and that a person can in fact be legally resident here for tax purposes even though he may be physically present here for only two months or less in any year. If this were the case, my opposition to the section would be slightly lessened. In broad terms it seems that the simplest way out of this dilemma for the Minister and for us is to delete the offending phrase.

Mr. Faulkner

Amendment No. 2, in effect, gives the Minister discretionary powers in the case of a member sentenced to a term of imprisonment but not in the case of a member who failed to make a disclosure of interest in the contract or appointment. It would appear to me that there are much more likely to be extenuating circumstances in relation to the latter case than in a case relating to the subsection dealing with imprisonment. My family have about 34 first cousins at least and it is quite possible that some of them have never met and probably would not recognise one another if they did meet. I am citing this as a possible situation where it could happen that a person would not, through any misdemeanour on his part, fail to declare that a particular person seeking appointment was a relative of his. I should like to emphasise again that the question of sanction in connection with this section was referred to by me on Committee Stage when I pointed out that I felt the power of removal by the Minister was sufficient sanction.

Senator O Higgins also raised in paragraph (c) the question of the court being established under the Constitution. He made a point that a person could possibly be convicted for the committal of an offence abroad which might not be an offence here. On the other hand, if we were to insert this it could mean that a person could commit a very serious offence abroad and it would still be open to him to remain a member of the board.

With regard to the discretionary powers proposed to be given to the Minister in the amendment regarding disqualification for imprisonment, I held on Committee Stage, and I still hold, that I should not be placed in a position of passing judgment on a sentence imposed by the courts of law. For these reasons I feel that the section as it stands is better and more suited to the Bill. I was impressed by the case made by Senator O'Higgins and Senator Horgan in relation to the phrase "or ceases to be ordinarily resident in the State" and I would be willing to accept that amendment.

Mr. O'Higgins

I suppose a quarter of a loaf is better than none. I feel there is no point in my arguing further with the Minister regarding amendment No. 2 in its entirety. However, I should like to say—and I am sure Senator Horgan will agree—that I am genuinely relieved and encouraged that the Minister has met the points of view put forward in relation to the deletion of the phrase "ceases to be ordinarily resident in the State". I should like to express gratification that the Minister has met us in that regard.

Amendment No. 2, by leave, withdrawn.

An Cathaoirleach

Amendment No. 2 has been withdrawn. With regard to amendment No. 3, it is a matter for the Chair under Standing Orders to decide whether we give permission for a late amendment or an amended amendment to be moved. Since there seems to be general agreement on the matter the Chair has decided to grant such permission. The amendment, therefore, will be:

In page 6, line 44, the following words be deleted: "or ceases to be ordinarily resident in the State".

Mr. Horgan

I move.

An Cathaoirleach

Is this amendment agreed?

Amendment agreed to.

Government amendment No. 4:

In page 8, line 19, before "An Bord" to insert "Subject to subsection (6) of this section".

Mr. Faulkner

This is a matter which was also raised by Senator O'Higgins on the Committee Stage. It is merely a drafting amendment to obviate conflict which might seem to arise between the subsection and the one following it. I made inquiries about this and the parliamentary draftsman felt that subsection (5) as it stood would have to be read in conjunction with subsection (6), but I decided, on the basis of the case made by Senator O'Higgins, that I would nevertheless insert this subsection for the purpose of clarifying the position beyond doubt.

Mr. O'Higgins

I should like to thank the Minister. I must confess however that my contribution, while it was on the lines the Minister has stated, was in support of the point which had been raised initially by Senator Horgan. I feel that the credit for achieving this amendment should really go to Senator Horgan.

Mr. Faulkner

I give the credit to both of you.

Amendment agreed to.

Mr. O'Higgins

I move amendment No. 5:

In page 8, line 34, before "through" to insert "(not being a function of a purely academic nature or one involving academic judgment)".

This amendment arises out of the Committee Stage discussion in relation to section 18 of the Bill. Section 18 provides 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 moved an amendment on Committee Stage to limit the right of the board so to delegate its functions by excluding functions which were of an academic nature. Perhaps it would be better to read the amendment into the section to make it more understandable. The section, if this amendment were accepted, would read:

An Bord may perform any of its functions (not being a function of a purely academic nature or one involving academic judgment) through or by any of its officers and servants duly authorised by An Bord in that behalf.

I do not intend to take up the time of the House in arguing this point because the principle of it has been argued fairly fully on Committee Stage. It is felt that, in relation to functions which are purely of an academic nature or functions which involve academic judgment, the power of the board to delegate should be delegation to duly qualified academic members of the staff who, by reason of their qualifications, are in a position to undertake the functions of an academic nature or to exercise the judgments of an academic nature which might be required.

Mr. Faulkner

As I see it, the effect of this amendment would be that An Bord could not delegate any of their teaching functions or their assessment functions to any of their officers which include, of course, the teaching staff. Apart from this, I feel that it would be, to a certain extent, casting a reflection on the board. It was suggested the other night on the Committee Stage that the board would need to be legally prohibited from putting an attendant in charge of a teaching class. I think that this would be to assume that the board would not be a responsible board.

Reference has been made throughout the discussion in this and the other House to the so-called limitations being placed on the autonomy of the board. At the same time, suggestions have been made of amendments, such as this one, which not alone, in my view, encroach on the autonomy of the board but are, in a sense, a reflection on their integrity. I should also like to underline that I am not suggesting that this is the view of Senator O'Higgins. It would appear to take away very much from the responsibility of the board if it were needed to write into the law that they should not do some of the things which were suggested on Committee Stage.

I have, on the other hand, accepted amendments which gave the board discretion when I felt that this was warranted. I do not want to be placed in the position of putting unwarranted and unnecessary constraints on the board. I feel that this particular amendment would be far too limiting.

Mr. O'Higgins

I said that I did not intend to take up too much time. There is no question of the amendment reflecting or intending to reflect in any way on the proposed members of the board, nor on their servants or officers. It is simply endeavouring to achieve a situation where, even accidentally there will be no question of matters requiring the exercise of academic judgment being dealt with by persons not properly qualified to deal with them. I will withdraw the amendment.

Amendment, by leave, withdrawn.

Bill reported with amendments and received for Final Consideration.

Question proposed: "That the Bill do now pass."

Mr. Faulkner

There is one point which I should like to make. Senator O'Higgins asked on the last occasion if specific reference should be made to security stocks and shares. I am advised that there is no need to do so. The word "property" is inclusive of any items not already mentioned in the section.

Question put and agreed to.