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Seanad Éireann debate -
Tuesday, 12 Jul 2022

Vol. 287 No. 5

Higher Education Authority Bill 2022: Report Stage (Resumed)

Debate resumed on amendment No. 10:
In page 15, between lines 32 and 33, to insert the following:
“(b) to protect and enhance the public nature of the higher education system;”
- (Senator Paul Gavan)

I take this opportunity - my first time to do so - to welcome the Minister of State, Deputy Collins to the House. Our most recent meeting took place on the "Late Debate" in RTÉ one night. We had a very civilised debate that night.

As everyone who wishes to do so has contributed on amendment No. 10, we must now dispose of it.

Amendment put and declared lost.

I move amendment No. 11:

In page 15, between lines 32 and 33, to insert the following:

"(b) creating a coherent system of diverse institutions with distinct missions;".

I second the amendment.

Amendment put and declared lost.

I move amendment No. 12:

In page 15, between lines 32 and 33, to insert the following:

"(b) creating a coherent system of diverse institutions with distinct missions which is responsive to the social, cultural, environmental and economic needs of Ireland and its people and the achievement of national objectives;".

I second the amendment.

Amendment put and declared lost.

I move amendment No. 13:

In page 15, line 34, to delete "and environmental development and sustainability" and substitute ", environmental and sustainable development".

I second the amendment.

Is the amendment being pressed?

On a point of order, a Chathaoirligh-----

On a point of order, I do have an issue. We had an agreement that we would not guillotine this legislation and that we would not rush through it. We have been called in here to vote but just so people are aware of what we are voting on. It is not that it is substantive. The vote is on amendment No. 13, which is to delete the words "and environmental development and sustainability" and substitute ",environmental and sustainable development". To call in Members of the House to have to vote on what is not a substantive amendment-----

Sorry, Senator.

You are doing your job.

(Interruptions).

A substantive debate-----

If Senator Higgins would speak to the amendments-----

Senators, please.

(Interruptions).

These are substantive amendments.

If the Senator would speak to the amendments rather than calling votes on minor issues-----

It is not minor. It is climate change.

As Members know, it is quite simple, we have the debate when the amendment is being discussed. When the-----

Is your chicken going cold-----

Senators, please.

(Interruptions).

I object to that language.

To the word "chicken"?

I object to that language being used in this Chamber.

The word "chicken"?

No, it is the other language you used. It is not that language and you know. Sorry.

Do not police my language. Maybe you might want to stand up to the man who is shouting on the other side of the room for women doing their jobs.

Senators, through the Chair. Any language used in this House should be appropriate and show respect for-----

Hang on a minute. That is a word. I said a word but he just screamed and shouted across the Chamber because we were doing our job.

Do not police my language. Police people's attitudes instead.

I have to inform those sitting in the Public Gallery that their intervention is not appreciated and is not allowed under the rules of the House. When the question is being put, the question is being put. Those are the rules of the House. When the debate is on, the debate is on. I ask people to show respect for each other during the debate but also when we are putting the question. Members cannot use language. I am not even saying-----

No, I am not even going to use the phrase-----

(Interruptions).

There are no questions. The question has been called and we are putting the question. That is the rule. We have put a question-----

I am not opposed to that but I-----

We are putting the question that has been asked.

Amendment put:
The Seanad divided: Tá, 6; Níl, 26.

  • Black, Frances.
  • Boylan, Lynn.
  • Gavan, Paul.
  • Higgins, Alice-Mary.
  • Ó Donnghaile, Niall.
  • Ruane, Lynn.

Níl

  • Ahearn, Garret.
  • Blaney, Niall.
  • Buttimer, Jerry.
  • Byrne, Malcolm.
  • Byrne, Maria.
  • Casey, Pat.
  • Chambers, Lisa.
  • Conway, Martin.
  • Craughwell, Gerard P.
  • Crowe, Ollie.
  • Cummins, John.
  • Currie, Emer.
  • Doherty, Regina.
  • Dolan, Aisling.
  • Fitzpatrick, Mary.
  • Gallagher, Robbie.
  • Horkan, Gerry.
  • Keogan, Sharon.
  • Kyne, Seán.
  • Lombard, Tim.
  • McGahon, John.
  • McGreehan, Erin.
  • O'Loughlin, Fiona.
  • O'Reilly, Joe.
  • O'Reilly, Pauline.
  • Seery Kearney, Mary.
Tellers: Tá, Senators Alice-Mary Higgins and Lynn Ruane; Níl, Senators Seán Kyne and Robbie Gallagher.
Amendment declared lost.

I ask Members to treat the House and each other with respect and dignity. I know it is a debate and people are passionate about it, as they should be, but when we are dealing with the rules of the House and procedures, people are not observing them. I am trying to implement them as best I can, but I can only do that if people observe them when they are asked to do so.

I am suspended the House for five minutes.

Cuireadh an Seanad ar fionraí ar 5.33 p.m. agus cuireadh tús leis arís ar 5.38 p.m.
Sitting suspended at 5.33 p.m. and resumed at 5.38 p.m.

I move amendment No. 14:

In page 15, line 35, to delete "agility" and substitute "excellence".

I second the amendment.

Amendment put and declared lost.

I move amendment No. 15:

In page 16, to delete lines 1 to 3 and substitute the following:

"(c) ensure that designated higher education institutions are transparent in their use of public money and that such monies are used in a sustainable and ethical manner;".

I second the amendment.

Amendment put and declared lost.
Amendment No. 16 not moved.

I move amendment No. 17:

In page 16, line 4, to delete “of opportunity”

I second the amendment.

Amendment put:
The Seanad divided: Tá, 8; Níl, 26.

  • Black, Frances.
  • Boyhan, Victor.
  • Boylan, Lynn.
  • Gavan, Paul.
  • Higgins, Alice-Mary.
  • Hoey, Annie.
  • Ó Donnghaile, Niall.
  • Ruane, Lynn.

Níl

  • Ahearn, Garret.
  • Blaney, Niall.
  • Buttimer, Jerry.
  • Byrne, Malcolm.
  • Byrne, Maria.
  • Casey, Pat.
  • Chambers, Lisa.
  • Conway, Martin.
  • Crowe, Ollie.
  • Cummins, John.
  • Currie, Emer.
  • Doherty, Regina.
  • Dolan, Aisling.
  • Fitzpatrick, Mary.
  • Gallagher, Robbie.
  • Hackett, Pippa.
  • Horkan, Gerry.
  • Keogan, Sharon.
  • Kyne, Seán.
  • Lombard, Tim.
  • McGahon, John.
  • McGreehan, Erin.
  • O'Loughlin, Fiona.
  • O'Reilly, Joe.
  • O'Reilly, Pauline.
  • Seery Kearney, Mary.
Tellers: Tá, Senators Alice-Mary Higgins and Lynn Ruane; Níl, Senators Seán Kyne and Robbie Gallagher.
Amendment declared lost.

I move amendment No. 18

In page 16, line 4, after “opportunity,” to insert “equity,".

I second the amendment.

Amendment put and declared lost.

I move amendment No. 19:

In page 16, line 4, after “diversity” to insert “, participation”.

I second the amendment.

Amendment put and declared lost.

I move amendment No. 20:

In page 16, between lines 4 and 5, to insert the following:

“(e) to ensure decent pay and good working conditions for academic (including PhD researchers) and non-academic staff in designated institutions of higher education;”.

I second the amendment.

Amendment put and declared lost.

I move amendment No. 21:

In page 16, line 6, after “respect” to insert “and protect”.

I second the amendment.

Amendment put and declared lost.
Amendment No. 22 not moved.

I move amendment No. 23:

In page 16, line 6, after “staff” to insert “and students”.

I second the amendment.

Amendment put and declared lost.

I move amendment No. 24:

In page 16, between lines 9 and 10, to insert the following:

“(h) to promote the attainment of the national aims of restoring the Irish language and preserving and developing the national culture, including by promoting teaching, learning and research across the wide diversity of disciplines at higher level through the medium of Irish.”.

I second the amendment.

Amendment put and declared lost.

I move amendment No. 25:

In page 16, between lines 9 and 10, to insert the following:

“(h) promote the development of public research for the public good which addresses social and environmental needs.”.

I second the amendment.

Amendment put and declared lost.

I move amendment No. 26:

In page 16, between lines 9 and 10, to insert the following:

“(h) promote and support the development of public-public partnerships for research between designated higher education institutions and public bodies both in Ireland and internationally.”.

I second the amendment.

Amendment put and declared lost.

I move amendment No. 27:

In page 16, between lines 9 and 10, to insert the following:

“(h) enable and assist research sharing and technology transfer between designated higher education institutions and public bodies in line with and with due regard to Article 4(1)(g) of the United Nations Framework Convention on Climate Change.”.

I second the amendment.

Amendment put and declared lost.

Amendments Nos. 28 to 42, inclusive, are related. Amendment No. 34 is a physical alternative to 33. The amendments may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 28:

In page 16, to delete lines 19 and 20 and substitute the following:

“(c) ensure financial transparency in designated higher education institutions and effective expenditure of An tÚdarás of public monies provided to it,".

I second the amendment.

The majority of the amendments in this grouping relate to the functions of an t-údarás, the next section of the Bill which flows after the section concerning the objects of an t-údarás.

In respect of the really important section concerning the objects of an t-údarás, the body which will oversee higher education across this State, I put forward 14 amendments and would have been entitled, if I so wished, to call vótáil on all of them. It would not be appropriate for any Member of the House to question my rights to do so. The amendments were put in with due process, thought and work. I commend my staff on the work they put in to legislation and the fact they take it extremely seriously.

I called for vótáil on two of the amendments on fundamentally important core principles, relevant not just to this Bill and to Ireland but to the world. They are the difference between a 1980s version of environmental development and the sustainable development which is defined widely, including in legislation from this House, in relation to the sustainable development goals and the global perspective. It is a substantial question as to which approach to environmental sustainability we take.

The other was on the fundamental issue of whether equality is wider, as the Minister acknowledged, than just equality of opportunity. The objects, which is the top line of this Bill, is where further discussion of equality flows from. It is important to get it right. I do not need to justify putting forward any amendment and pressing a vote on it but I want to signal, lest the record wrongly show, that these are really important issues.

Amendment No. 28 concerns the question of "value for money" relating to the functions of an t-údarás. I have highlighted that the framing of "value for money" is somewhat narrow and out of touch with the understanding we have now of things like most economically advantageous.

I commend the Minister for Tourism, Culture, Arts, Gaeltacht, Sport and Media, Deputy Catherine Martin, for accepting the points that I made about value for money when we debated the Online Safety and Media Regulation Bill. Today, we are not just talking about value for money in a narrow sense such as efficiencies or an economic amount but seek to learn what is effective. It was in that regard that I proposed the deletion of section 9(1)(c) which states: "secure and evidence value for money in the expenditure by an t-údarás of moneys provided to it under section 19" and substitute “ensure financial transparency in designated higher education institutions and effective expenditure of an t-údarás of public monies provided to it”. For me, out of the three standards that are set by the Comptroller and Auditor General, effectiveness is one of the most important because we want to know that the money we spend has a good effect.

Amendments Nos. 28 to 30, inclusive, and 32 seek to ensure that without prejudice to the ability of an t-údarás to plan for higher education, under sections 9(1)(d) and (e), that it would also respond to the recommendations made by individual institutions. We tabled this amendment because it is important that recommendations are factored into how an t-údarás plans for the sector as a whole, which goes back to the core issue of recognising that institutions have distinct missions, characters, wisdom and knowledge. To preserve university autonomy, we must ensure that the relationship, especially concerning this crucial area of advising on policy, is not solely hierarchical and is a collaborative relationship.

These amendments seek to address lines 23 to 24 so that an t-údarás plans for higher education provision and makes recommendations to the Minister, and that an t-údarás would plan for research in the higher education system and make recommendations. Perhaps the Minister of State, in his reply, will make it clear that it would not be the case that institutions are required, through an t-údarás, to make recommendations concerning research given that they have specialist knowledge and understanding in those areas yet would still be empowered to make direct recommendations to Ministers in that regard.

Amendment No. 31 highlights the importance of climate change, and particularly now given the critical need for Ireland to accelerate actions to deliver on its 51% greenhouse gas emissions reduction target by 2030 and vastly improve our track record for protecting the environment. I have often said that climate change is a crucial area because I think about this issue all of the time, particularly as the last ten years of the last 100,000 years have been the hottest to date.

As I said previously about research, Ireland's higher education system has a crucial role to play in discovering, developing and implementing solutions that will help us to achieve our climate, environmental and sustainable targets leading up to 2030 and beyond. That is why sustainable development is crucial. Ireland negotiated the UN sustainable development goals and persuaded the rest of the world to sign up to them just a few years ago. The goals should be our guide and we have only eight to achieve them.

In seeking to imbed sustainable development stronger into the Bill I acknowledge that many individual higher education institutions have done extremely good work in respect of the sustainable development goals. I have launched projects in NUI Galway on same. UCC has won awards for its co-operation and partnership around the goals. Finally, I commend the Irish Research Council on providing important research grants concerning the sustainable goals. All of that work shows that sustainable development is a core issue. In fact, one of the reasons that it is a core issue for many universities is because it is a key factor in securing Horizon 2020 funding and EU funding. However, more needs to be done to imbed sustainable development in the functions of an t-údarás in a way that matches what is being done by institutions. I wish to note that I have tabled an amendment on sustainable development that concerns green public procurement.

Amendments Nos. 33 and 34 have been tabled because my colleagues and I believe that the current wording of section 9(1)(f) is unsatisfactory as it overly focuses on the needs of business and the professions, not on the broader needs of society. Section 9 refers to the functions of an t-údarás and 9(1)(f) states: "meeting the educational and skills needs of individuals, business, enterprise, the professions, the community, local interests and other stakeholders". Clearly, business, enterprise and the professions are named individually when, certainly for business and enterprise, one word might have been enough. I note that the arts, culture and the environment have not been listed among the educational and skills needs. I think that they should be so the amendment seeks to insert the words "society, the environment, the arts" among the measures already mentioned.

Amendment No. 35 concerns the global dimension of the higher education system. The amendment specifies that as a function of an t-údarás there is a need to, "promote co-operation between higher education institutions in the European Union and internationally for the purposes of advancing public research and development which seeks to address social and economic inequalities and environmental challenges and climate change". Global co-operation is needed to tackle these challenges and I urge the Minister of State to consider this amendment. We have raised these issues in areas of work because we have only a narrow window of time in which to act globally to avert a layering of catastrophes. I am someone who is passionate about higher education and I am very passionate about the role that it can play in this regard. That is why we need to imbed this aspect at the core of higher education. Again, those who are lucky enough to have the opportunity to access higher education and these institutions have a role to play in tackling social challenges.

Amendment No. 36 concerns the specified functions of an t-údarás. As this is Traveller Pride Week, we have an opportunity to accept this amendment as it would imbed this matter. If the Minister of State cannot accept the amendment then perhaps he might look at other ways in which to bring this matter forward.

Earlier today, I had the honour of presenting an award to members of the Mincéirs Whiden Society, NUIG. As the Minister of State will be aware, the Civil Engagement Group has previously brought forward legislation in respect of Traveller culture and history in terms of education in the primary and secondary education systems. I seek to mirror those provisions and ask that we consider research into Traveller culture and history, and recognise that there is a major gap in the system. I note that there is an opportunity here and commend the institutions that have already started this process. One of the projects that universities need to commence in the next period is research on decolonisation, including the decolonisation of the curriculum. I hope that an t-údarás will support and give guidance to institutions in that process.

Amendment No. 37 seeks to insert the following: "(n) promote, support and respect academic freedom for staff and students,". We have already discussed the fact that students make an important academic contribution and, therefore, their academic freedom should be protected.

On amendment No. 38, in 2015 Ireland, along with 182 UN member states, signed up to the delivery of the 17 UN sustainable development goals, which are a blueprint for a better and more sustainable future for us all. The goals are not an aspirational and nice add-on. They are game-changing and a different way of doing things, which gives us, as a planet, society and humanity, a far better chance of sustainability and survival. As fewer then eight years remain in which to deliver on the goals, Ireland must start accelerating action to deliver on them. I believe that it is appropriate for universities to lead in this respect, especially given that the goals will be and are core for higher education institutions when accessing EU and international funding, and developing, which is as important as funding, partnerships with institutions of higher education across the world that are working to solve these joint problems and develop collective solutions.

Amendment No. 39 seeks to ensure that equity would be inserted as something which an t-údarás would be tasked with promoting and as part of its functions. I will not go over these points again but it was previously acknowledged by the Minister that equality and equity were not quite the same thing. Equity should be named as part of the functions of an t-údarás.

Amendment No. 40 seeks to insert the provision of monitoring and assisting the implementation of the United Nations Convention on the Rights of Persons with Disabilities, CRPD, and specifically Article 24, which falls very much within the remit of higher education institutions. That is an internationally binding treaty which Ireland has ratified and Article 24.5 specifies that: “States Parties [should] ensure that persons with disabilities are able to access general tertiary education,”. The work of an t-údarás would be very much in line with the fulfilment of that article. Article 24.5 continues: "To this end, States Parties shall ensure that reasonable accommodation is provided to persons with disabilities". I understand that there may be scope within the equality statement to address this issue but I want to name it as a very specific responsibility and article within the UN in the CRPD where higher education will have to take the lead.

Amendment No. 42 refers to the fact that section 9(2) of the Bill currently provides that: "An tÚdarás shall have all such powers as are necessary or expedient for the performance by it of its functions". This is quite a great deal of power to give to a public body and is not caveated with the provision that such functions must be related to this piece of legislation. The word "expedient" is perhaps inappropriate here, and again should be either deleted or deleted and replaced with the word "proportionate", as suggested by me. That is important because the idea of "expedient" means quickly and doing it as fast as possible. In an area such as this, and with the exercise of the very considerable powers that are being given to an t-údarás, ensuring that they are exercised in a way that is proportionate is certainly as important if not more important than ensuring that they are done quickly. We note that sometimes if there is a requirement for doing things in the quickest way possible, mistakes may be made.

Can I just check that amendment No. 42 is the end of that grouping, please?

These are amendments Nos. 28 to 42 and, yes, it is. I call Senator Malcolm Byrne to speak now, please.

I thank the Cathaoirleach Gníomhach. I want to apologise to Senator Higgins because at no stage did I want to imply that Senator Higgins did not take her role as a legislator particularly seriously. The point I was making, however, concerning this is that there is no guillotine on this discussion but simply because there is no guillotine does not mean that Members should speak at length and repeat points that have been made in earlier debates. I make the point that when there were complaints made about Committee Stage, that of the three hours and 20 minutes that were allowed on Committee Stage, two hours and 20 minutes of those were taken by Opposition speakers and an hour was taken by Government speakers, including the Minister.

I ask the Senator to stick to the amendment, please.

It is important that people speak to the specific amendments that are before them which is part of the point I want to make.

It is essential to note that this legislation is not guillotined and is being allowed to be continued. That was something the Government agreed to do because there was a request and a perception earlier that this Bill was rushed. It was not a question that it was rushed but it was, quite frankly, that people were speaking too long on the particular amendments.

However, it is going to be difficult to see that guillotines will not be provided for in the future if people feel that they have to speak ad infinitum on particular matters.

We are being told how to do our job and it is absolutely ridiculous.

I am happy, a Chathaoirligh Gníomhach, and I ask that at all Stages during this debate that all speakers stick to the amendments that are before them.

Let us do that and deal here with these amendments now, please.

On a point of order, a Chathaoirligh Gníomhaigh, an assertion is being made that people have not stuck to the amendments and the Senator is misrepresenting the Senators in the Chamber.

Without interrupting anybody on both sides, can Senator Malcolm Byrne just stick to the amendments now and let us continue on with the debate, please.

What is at the core of all of these amendments is that they are seeking to try to talk about what this legislation is about. At its core, it is about the governance of our higher education system with regard to the functions of an t-údarás. Yes, while many areas are outlined within the amendments, those are issues which are already dealt with substantively within parts of the legislation. The core functions, however, of this legislation are around issues of governance. I have to say that I have enormous respect for the Minister and his officials who, during the Dáil debates on this legislation, took a significant number of amendments on board which strengthened the legislation.

Can the Senator deal with the amendments at hand, please?

I hear Senator Ruane interrupting me to speak to the amendments at hand but will she also be happy if I interrupt herself and Senator Higgins when they do not speak to the amendments at hand, which is part of the difficulty?

I wish to raise a point of order.

The Senator needs to speak to the amendments at hand.

I am sorry, Acting Chairman, but Senator Malcolm Byrne has come in repeatedly to misrepresent our roles and to tell us how long we should and should not speak, in the first instance-----

What I would say to Senator Malcolm Byrne is that if he will not-----

It is absolutely atrocious that just because Opposition Senators are in here working hard and tabling amendments that somehow that is framed as a negative thing. There is something seriously wrong with a man from another party coming in here and telling us how to do our jobs.

That is a point well made. Especially when I am in the Chair, we will not have any Senator being interrupted because it is important that everyone has their chance to speak and we will stick to the amendments. Let us stick to the amendments. I ask Senator Malcolm Byrne to finish off his point now, please, because Senator Dolan would like to make a contribution afterwards.

I am quite happy to do that then.

I make the point that I have never interrupted any other Senator when they were speaking.

That is a point well-made and accepted.

The key to a number of these amendments is that they are already covered by significant parts of the legislation and by activity that has already been undertaken by an t-údarás. Many of these amendments are doubling up on areas that are provided for within the legislation and on work that an t-údarás is already doing. As already outlined by me, significant contributions were made in the Dáil, particularly around some of the environmental issues and Deputy Ó Cathasaigh was mentioned in that context. I am quite happy about the objectives that are set out within the legislation and I believe much of what is raised in the amendments is already covered by what is in the Bill as it stands.

I acknowledge the credentials of people in this Chamber, especially the spokespeople, and the people bringing forward all of the amendments. I am aware that Senators on both sides of the House were looking to bring forward amendments and the Department and its officials were engaging over the many Stages on this over the past number of years.

On the amendments to hand, I will highlight a number of points. I am aware that Senator Higgins was speaking about the use of the word "excellence" and in the more recent amendments about the sustainable development goals.

When one looks at the goals, out of those 17, many of those have been funded through the Irish Research Council and the Sustainable Energy Authority of Ireland. Many of our social sciences are being funded by these bodies around the goals that we mentioned here such as ending poverty and hunger, health and education, gender equality, innovation, and sustainable cities.

We have many centres of excellence which are also funded through Science Foundation Ireland, particularly in the MaREI, the SFI Research Centre for Energy, Climate and Marine, which centres are looking across some of these environmental areas. That is absolutely crucial. It is very important, as the Senators have said and as has been acknowledged by the Minister previously, that where we are looking at reviews of this legislation and look forward to it being implemented, but we first of all need to see it being put into place because this is ground-changing legislation. It will very much change the way we do things at third level in the funding of our institutions and supporting and updating the governance of these institutions and to ensuring the students have a voice in that governance at each stage, particularly of our higher education institutions, HEIs.

The challenge we are seeing here is that hopefully when it is in place and operating as best practice, as it should, we will then be able to look at that segment around the policies and their implementation and at where we see gaps, particularly if there are gaps around the sections that have been highlighted.

Some of the amendments which were highlighted by Senators Higgins, Ruane, Flynn and Black were around research sharing and technology transfer. On that amendment, with due regard to the article of the United Nations framework, I will state that we already have a great number of technology transfer offices particularly within each of our HEIs which are working with researchers to do that and have been funded through the colleges and universities. It is very important that the research offices within the colleges are also doing the transfer. The technology transfer is almost a separate stage to the research office. They work quite closely together but their focus is very different.

One can imagine then that the research office is there to support researchers in putting applications for funding to all different agencies whereas the technology transfer offices are there to support a person when a novel idea is developed as part of that research. It may have a potential commercial or societal application where it may benefit society as a whole.

We must develop that to ensure it will not just be in a book that sits on a desk somewhere but will actually be used by us and in society and become something that does not only exist in a thesis as such.

I will address the last couple of points. We highlighted very clearly that academic freedom will be respected and that this Bill would in no way, shape or form interfere with academic freedom for either staff or students. Protecting those academic freedoms has also been guaranteed through a number of other Bills.

I very much believe this Bill will support research and development, particularly around the sustainable development goals, SDGs, because that is where funding is available at many levels through the Exchequer in Ireland but also at a European level. It is evident that our researchers are applying for and getting funding in these particular areas. There are probably a few other points but I will finish there. I know the intentions here are well-grounded. I believe this Bill has much to offer and I cannot wait to see the results when it has been put in place.

Senator Malcolm Byrne mentioned that an t-údarás is already fulfilling many of the aspects of what we seek to amend in this legislation. It might be helpful if the Minister of State could give us some examples of those for when we are considering what to do with the amendments. That would be great.

It is due any minute.

I thank all the Senators for their contributions with regard to this grouping of amendments. Amendment No. 28 seeks to delete the function in section 9(1)(c) to "secure and evidence value for money in the expenditure by An tÚdarás of moneys provided to it under section 19" and replace it with "ensure financial transparency in designated higher education institutions and effective expenditure of An tÚdarás of public monies provided to it.” It should be noted that section 9(1)(m) provides for the function to "assess the performance of funded bodies with regard to securing value for money in the expenditure of funding provided to them by An tÚdarás under this Act". It is important that the functions outlined in 9(1)(c) and 9(1)(m) are retained to ensure that there is value for money in the expenditure by an t-údarás of Exchequer funding provided to it and that there is also value for money in the expenditure by funded bodies of Exchequer funding provided to them. It is considered that the functions outlined in 9(1)(c) and 9(1)(m) provide for the appropriate level of assurance with regard to Exchequer funding. The amendment to section 9(1)(c) is not, therefore, considered appropriate.

There are a number of provisions in the Bill that could be used to ensure that designated institutions of higher education spend Exchequer funding in an ethical, sustainable and transparent manner, including conditions of funding, data collection, reporting provisions and guidelines, codes and policies. The higher education institutions are required to report to the Higher Education Authority, HEA, on the expenditure of the Exchequer funding and the HEA can request additional financial information as required. Therefore, the higher education institutions are already required to be transparent in their use of public money. The Bill provides that funding is provided to institutions in accordance with conditions of funding. One of the conditions of funding could be spending this funding in an ethical and sustainable manner. Section 143 of the Bill provides that the HEA can issue the designated institutions of higher education guidelines, codes and policies and the institutions are required to report to the HEA on the implementation of these guidelines, codes and policies. The Minister can also direct the HEA to issue guidelines, codes and policies to a higher education institution. The provision could be used by the HEA to issue guidelines on the ethical and sustainable use of funding.

Amendments Nos. 29 and 30 propose to include a reference to insert "without prejudice to such other recommendations as may be made by individual designated higher education institutions” in relation to the HEA planning for higher education provision and research and making recommendations to the Minister. There is nothing in the legislation that precludes higher education institutions from making recommendations to the HEA in relation to planning for higher education provision and research. It is noted that section 39 of the Bill, which provides for the HEA to plan for higher education provision and make recommendations to the Minister, includes provisions for consultation with designated higher education institutions.

It is considered that amendment No. 31 is already addressed by section 9(1)(i), which is a general function with regard to research in accordance with national research policy. This sets the research priorities and could include protection of the environment and sustainable development. Section 9(1)(i) provides that the HEA shall "promote, support and fund excellent research in the higher education system in all disciplines in accordance with national research policy and in co-operation, as may be appropriate, with Ministers of the Government, Government agencies and such other bodies as An tÚdarás considers appropriate".

Amendment No. 32 proposes to include a function in the Bill for the Higher Education Authority to respond to recommendations from designated higher education institutions in respect of the overall higher education and research system. The HEA consults with and engages with higher education institutions on specific issues with regard to higher education, for example, funding, planning, performance, framework and performance agreements. Through these processes, the HEA can listen to and respond to recommendations from designated higher education institutions in relation to the higher education and research system. The Minister sets the policy for the overall higher education and research system. Section 33 of the Bill provides that the Minister shall prepare a strategy for the provision of tertiary education. Designated higher education institutions are consulted on the preparation of this strategy. The designated higher education institutions can make recommendations to the Minister through this process in respect of the overall education and research system. It is not, therefore, considered appropriate to include this proposed provision in the Bill.

Amendments Nos. 33 and 34 seek to amend section 9(1)(f) to include reference to the HEA supporting the provision of a range of programmes of higher education and training aimed at meeting the educational and skills needs of society, the environment and the arts. References to the community, local interests and other stakeholders in the Bill are deemed to cover the proposed references to society, the environment and the arts. It is also important to note that this amendment would have the unintended consequence of removing the reference to Irish language, which was included on Committee Stage in the Dáil to strengthen the Irish language provisions in the Bill. It is not, therefore, proposed to accept those amendments either.

As for amendments Nos. 35, 36 and 38, the Bill includes section 9(1)(i), which is a general function in relation to research in accordance with national research policy. This sets the research priorities and could include specific research, if deemed appropriate, as set out in these amendments. These specific provisions are considered too prescriptive for inclusion in this Bill as research policies will change over time and are more appropriately set in research policy strategies. Section 9(1)(i) provides that the HEA shall "promote, support and fund excellent research in the higher education system in all disciplines in accordance with national research policy and in co-operation, as may be appropriate, with Ministers of the Government, Government agencies and such other bodies as An tÚdarás considers appropriate."

Amendment No. 37 proposes to include a provision in the functions with regard to academic freedom. It should be noted that the objects include a provision in relation to academic freedom, which is "to respect the academic freedom of higher education providers and academic staff in those providers".

Academic freedom is provided for in section 14 of the Universities Act, section 10 of the Technological Universities Act and section 32 of the Institutes of Technology Act 2006. This Bill does not amend those provisions in relation to academic freedom. Academic freedom is therefore protected by the relevant sectoral legislation and the provisions in the Acts, which means that this amendment including a function for academic freedom is not necessary. We discussed this amendment with the Office of the Parliamentary Counsel and it said that when objects are included in the functions it affects the carefully crafted balance of the Bill. The provisions relating to academic freedom for academic staff in the sectoral legislation provide that they shall not be disadvantaged or have less favourable treatment arising from their opinions.

It is important that this Bill is read in conjunction with the sectoral legislation, namely, the Universities Act. That Act includes an object "to foster a capacity for independent critical thinking amongst its students". The Technological Universities Act includes a function to promote "critical and free enquiry, informed intellectual discourse and public debate within the technological university and in wider society". It is therefore not considered necessary to specifically provide for the academic freedom of students in the Bill. There is no restriction in this Bill or in the sectoral legislation on students expressing their views. Students have a different status from academic staff in an institution. They are not employed by the institution and therefore they cannot be subject to any unfavourable contracts, remuneration or employment-related treatment. There is also provision in the sectoral legislation for independent dispute resolution to resolve any disputes. Students' unions, together with staff associations, are required to be consulted in the preparation of the dispute resolution procedures.

Amendment No. 39 proposes to amend function (n) to read as follows:

support equality, equity, diversity and inclusion in higher education, including the participation and success of students in priority groups, or persons in such groups seeking to be students, in higher education.

It is considered that the full provision as currently worded provides for equity. It provides for the "participation and success of students in priority groups, or persons in such groups seeking to be students, in higher education". This is a standard wording that is recognised within the education sector regarding equality, diversity and inclusion. There is a strong emphasis in the Bill on equality and equity, including the object for the HEA to "advance equality of opportunity, diversity and inclusion in higher education" and the function for the HEA to "support equality, diversity and inclusion in higher education, including the participation and success of students in priority groups, or persons in such groups seeking to be students, in higher education".

Section 46 of the Bill provides that the HEA shall prepare a strategic plan providing for "equity of access to, and participation and the promotion of success in, higher education". This plan will set "goals, objectives, actions, targets and performance indicators for improving equity of access to, participation and the promotion of success in the higher education system by students in priority groups, and persons in those groups seeking to become students, in higher education". A designated institution of higher education is required to have regard to this plan for the purposes of the preparation of a strategic development plan and its equality statement. Higher education institutions are required to have this plan in place and are required to report on its implementation annually.

With regard to amendment No. 40, there is an object and a function relating to equality, diversity and inclusion in higher education. There are specific provisions in place for priority groups, for example with regard to funding and planning. The Bill makes provision for the preparation of an equality statement by designated institutions of higher education, which includes specifying the policy of the institution for enabling access to it and the education it provides for students, priority groups and persons in those groups seeking to become students. The HEA is also required to develop an equity of access, participation and promotion of success plan and designated institutions of higher education are required to have regard to this plan. They are also required to report on the implementation of the plan. There are important provisions in the Bill relating to data collection by the HEA from designated institutions of higher education. Section 49(1) of the Bill provides that the HEA may collect disability data from designated higher education institutions. It is regarded as too specific to include the provision with regard to the UN Convention on the Rights of Persons with Disabilities in this Bill. This reference could change over time and it is important that we respect the autonomy of designated higher institutions of education.

On amendment No. 41, provisions relating to co-operation and collaboration with the higher education sector in Northern Ireland were expanded during Dáil Committee Stage to include the provision of student places and the enrolment of students. Therefore, this amendment is not deemed necessary.

With regard to amendment No. 42, this is a standard wording in the drafting of the legislation and it is necessary for the effective implementation of the Bill by the HEA.

The Minister of State indicated areas of the Bill that could address these issues. There are provisions in the Bill where these things could be addressed. What I was trying to do by putting these provisions into the functions is ensure they would be addressed and cement them in that way.

On amendment No. 28, the Minister of State has indicated that there is potential for the inclusion of provisions around ethical issues and sustainability in what constitutes appropriate spending codes. I may engage further on that and will probably not need to press that amendment.

Regarding amendments Nos. 29 to 32, inclusive, the Minister of State described at length of the measures whereby individual institutions may engage with the údarás, formerly the HEA, and where it may consult with them. I wanted to underscore and make clear that individual institutions can also come forward with their ideas for higher education policy and research. Any Minister should listen to and engage individually and on a bilateral basis with institutions that bring insight in that regard, rather than having a hierarchical flow where institutions engage with the údarás and it engages with the Minister. I am concerned that there is potential for that to happen. As the Minister of State has said, it does not need to happen in that way based on what is in the Bill so I will refrain from pressing the amendment. Instead, I encourage every individual institution to put forward its direct policies. Institutions should not solely engage with an t-údarás but continue to engage with the Minister and with political representatives at large on the ideas they have. That is something I would expect from them and I hope the Minister would expect that as well.

I note that amendment No. 33 would have an inadvertent effect on the Irish language aspects of the Bill, which means I will probably not be able to press it. However, I am concerned. The Minister of State mentioned the finely crafted balance in the Bill. It refers to business and enterprise but not to arts or culture. That is a gap. I am sure it is inadvertent but it is a gap. Regrettably, I will not be able to press this amendment without removing the Irish language part. I urge the Government, over the summer, to consider strengthening some of the language around arts and culture in this Bill.

I have spoken about the matter of the environment already. I will be engaging with the research Bill. I may not need to press many of the amendments on research now, not because I think they are addressed in this Bill but in good faith and in the expectation that they will be addressed in the research Bill that is coming in the autumn. Engagement on that will be important. On the question of staff and students, the issues of equity and policies are addressed further downstream. I would have liked to include them in the objects but I understand that while they are not in the functions they are in later specific provisions of the Bill. I have highlighted the importance of the UNCRPD. We have not covered the matter of "expedient" versus "proportionate" at length but I think the word "proportionate" is important.

Amendment, by leave, withdrawn.
Amendments Nos. 29 to 33, inclusive, not moved.

I move amendment No. 34:

In page 16, line 26, after “business,” to insert “the environment,”.

I second the amendment.

Amendment put and declared lost.

I move amendment No. 35:

In page 17, between lines 17 and 18, to insert the following:

“(n) promote co-operation between higher education institutions in the European Union and internationally for the purposes of advancing public research and development which seeks to address social and economic inequalities and environmental challenges and climate change,”.

I second the amendment.

Amendment put and declared lost.
Amendment No. 36 not moved.

I move amendment No. 37:

In page 17, between lines 17 and 18, to insert the following:

“(n) promote, support and respect academic freedom for staff and students,”.

I second the amendment.

Amendment put and declared lost.

I move amendment No. 38:

In page 17, between lines 17 and 18, to insert the following:

“(n) promote and support public research and development in relation to the achievement of the United Nations Sustainable Development Goals,”.

I second the amendment.

Amendment put and declared lost.
Amendment No. 39 not moved.

I move amendment No. 40:

In page 17, between lines 20 and 21, to insert the following:

“(o) monitor and assist the implementation of the United Nations Convention on the Rights of Persons with Disabilities, in particular Article 24, across designated higher education institutions,”.

I second the amendment.

Amendment put and declared lost.
Amendment No. 41 not moved.

I move amendment No. 42:

In page 18, line 3, to delete “or expedient” and substitute “and proportionate”.

I second the amendment.

Amendment put and declared lost.

Amendment No. 43 in the name of Senators Higgins, Ruane, Flynn and Black arises out of committee proceedings. Amendments Nos. 43 and 44 are related. Amendment No. 44 is a physical alternative to No. 43. Amendments Nos. 43 and 44 may be discussed together, by agreement.

I suggest that amendment No. 45 be included in this grouping. It relates to the same matter and will save us some duplication.

I move amendment No. 43:

In page 18, to delete lines 12 to 14 and substitute the following:

“(2) An tÚdarás shall comply with any directions concerning the engagement of consultants and advisers which may from time to time be given to it by the Minister, given with the consent of the Minister for Public Expenditure and Reform, and any such engagements shall be subject to an appropriate and transparent process.”.

I second the amendment.

Amendments Nos. 43 to 45, inclusive, all seek to address the language in a section which I am concerned about. It states, "An tÚdarás shall comply with any directions concerning the engagement of consultants and advisers which may from time to time be given to it by the Minister". There are a number of sections in this Bill in which the Minister's powers are very wide. They are framed in a somewhat loose way. There should not be a risk in the legislation of a situation whereby a Minister is able to direct an t-údarás with regard to the engagement of a particular consultant or adviser in relation to an issue. We have a risk of individuals who have not gone through the an t-údarás appointment process being placed with it and potentially being given considerable power. There is a requirement for an t-údarás to comply with any directions relating to the engagement of consultants and advisers. I have suggested three ways to address this. Amendment No. 45 removes the provision. Amendment No. 44 replaces "shall comply" with "may consider". It would be appropriate and sufficient if there was a requirement for consideration. Amendment No. 43 would delete the provision and replace it with similar language and a measure that would specify that the engagement of consultants should be subject to an appropriate, transparent process.

The intent of the policy may be for the Minister to set out rules relating to best practice and transparency in the appointment of consultants or advisers. As it is worded in the Bill, it is a wide provision that an t-údarás has to comply with any directions concerning the engagement of consultants or advisers. There is a risk, as it is worded, that a Minister could, for example, direct an t-údarás that it must hire a person or persons from an organisation as advisers. I have tried to address this loose wording in three different ways. I am open to clarification about appropriate, transparent processes of recruitment. While policy intent is one thing, we need to look at how the legislation is worded. This is one of a number of sections, with more important ones in the next grouping, where the wording regarding the powers of the Minister is too wide and too loose.

Like other State bodies, an t-údarás is subject to public procurement rules, which are subject to a transparent process, so this amendment is unnecessary. I know from experience that public procurement rules are quite strict and, in many ways, they can potentially inhibit some actions that one wishes for, because the rules have to be followed strictly. I think this amendment is unnecessary.

Amendments Nos. 43 to 45, inclusive, propose to amend section 10(2). Amendment No. 44 would change "shall comply with" to "may consider", while amendment No 43. states, "An tÚdarás shall comply with any directions concerning the engagement of consultants and advisers which may from time to time be given to it by the Minister, given with the consent of the Minister for Public Expenditure and Reform, and any such engagements shall be subject to an appropriate and transparent process." Section 10(1) states, "An tÚdarás may appoint such consultants and advisers as it considers necessary for the performance of its functions." Section 10(2) relates to guidelines or rules concerning the engagement of consultants and advisers. It could include rules regarding remuneration of consultants, for which functions a consultant may be employed, or issues relating to the procurement of a consultant. There are rules regarding the employment of consultants, which are approved by the Minister for Public Expenditure and Reform. These rules are needed to ensure that Exchequer funding is used appropriately and that an appropriate process is followed. It is, therefore, not considered necessary to include a provision stating, "any such engagements shall be subject to an appropriate and transparent process."

The policy intent of section 10(2) and (3) is that the engagement of consultants would be subject to an appropriate and transparent process in accordance with the directions and guidelines issued by the Minister and the Minister for Public Expenditure and Reform. It is not deemed appropriate to accept amendment No. 44 as it would provide that the Higher Education Authority would not have to comply with any direction of the Minister or the Minister for Public Expenditure and Reform regarding the engagement of consultants and advisers. This would not provide for an appropriate and transparent process.

Amendment No. 45 proposes to delete section 11, which states, "The Minister may give a direction in writing to An tÚdarás for any purpose relating to this Act".

It should be in the next grouping. I apologise for that.

I can address that later.

We can come to it shortly. I accept the intent of the legislation. The Minister of State referred to an appropriate and transparent process. That language was not included. I imagine it was the intent but it is not included. I will not dwell further on it. The concern about excessively widely-framed language is more significant with regard to the next section. I will probably not press amendments Nos. 44 and 45, but I might press amendment No. 43 to explicitly refer to that appropriate and transparent process.

Amendment put and declared lost.
Amendments Nos. 44 and 45 not moved.

Amendment No. 46 is in the name of Senators Higgins, Ruane, Flynn and Black.

We have changed the groupings. As I understand it, amendments Nos. 46 to 51, inclusive, 68, 70 to 72, inclusive, and 149 to 154, inclusive-----

I am not clear what is happening. What is the position with amendment No. 45?

A vote is being called in the Dáil. Does the Minister of State want me to suspend the sitting in order that he can attend the vote?

We can keep going.

We will keep going and the Minister of State can give me the nod when he needs to leave.

Amendments Nos. 71 and 72 are physical alternatives to amendment No. 70. Amendments Nos. 46 to 51, inclusive; 68, 70 to 72, inclusive, and 149 to 154, inclusive, may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 46:

In page 18, lines 21 and 22, to delete from and including “(1) The” in line 21 down to and including line 22 and substitute the following:

“(1) The Minister may give a direction in writing to An tÚdarás, following consultation with the Board of An tÚdarás, for any purpose relating to this Act and concerning—”.

Amendment Nos. 46, 47, 48 and 50 are all related to the powers in terms of the giving of Ministerial direction to an t-údarás. I just want to check the grouping on whether it also covers where direction is given to a higher education institution. Amendments Nos. 46 and 48 provide that before giving direction to an t-údarás, the Minister must consult with the board of an t-údarás. Amendment No. 47 seeks the deletion of section 11(1)(b), which provides that a direction from the Minister may relate to the implementation of any policy or objective of the Minister or Government. That is extremely widely framed. I will come to the related points later that any policy or objective of the Minister or Government-----

I am sorry to interrupt, but the Minister of State has to leave to attend the vote in the Dáil.

Cuireadh an Seanad ar fionraí ar 6.52 p.m. agus cuireadh tús leis arís ar 7.20 p.m.
Sitting suspended at 6.52 p.m. and resumed at 7.20 p.m.

We are resuming Report Stage of the Higher Education Authority Bill 2022. We were discussing amendments Nos. 46 to 51, inclusive, 68, 70 to 72, inclusive, and 149 to 154, inclusive. Senator Higgins was in possession.

These amendments seek to address the manner in which the Minister may give direction to an t-údarás. Amendment No. 46 seeks to specify that in giving a ministerial direction, it will be done in consultation with the board of an t-údarás. Amendment No. 47 seeks to delete section 11(1)(b), according to which the Minister may give a direction in writing to an t-údarás concerning, "the implementation of any policy or objective of the Minister or the Government".

I am concerned that it is too widely framed. I am aware of the caveat that the Minister may provide a direction in writing for any purpose relating to the Act. I am concerned about that, but I am more concerned about the instructions that may be given to some of the higher education institutions, requiring them to comply with a ministerial direction that does not include the caveat restricting it to purposes to relating to the Act.

I feel that section 11(1)(b) is too widely framed. There is a concern around unfettered powers of Ministers to issue direction that could be used inappropriately by a potential future Minister, given that the legislation refers to directions concerning, "the implementation of any policy or objective of the Minister or the Government". It blurs the lines of Government policy and national policy as we cement it into legislation and statutory provisions such as regulations.

Amendment No. 51 seeks to insert a new section into the Bill. It provides that nothing in the legislation, "shall be construed as preventing An tÚdarás, or designated higher education institutions, from freely expressing its views on matters concerning higher education". The Irish Universities Association has expressed concern that in some respects the independence of the HEA is being eroded in this Bill. It is particularly concerned that the oversight provisions result in a shift in the balance around autonomy and control. It is in light of that that a provision which specifically sets out the advocacy role and rights of institutions is proposed. It would be a constructive way to alleviate concerns about the advocacy role that an t-údarás and individual institutions may play.

Amendment No. 71 seeks to amend section 38(2)(d), relating to compliance with the guidelines, codes and policies issued by an t-údarás under section 143. Amendment No. 149 seeks to provide that in developing codes, guidelines and policies under section 143, an t-údarás will consult with trade union representatives of both academic and professional staff. The Minister will be aware that we have discussed the issue of student unions at some length. However, there is concern that throughout the Bill, the role of trade unions as partners is not cemented in relation to an t-údarás and individual higher education institutions. Consultation with the trade unions of both academic and professional staff is important in that regard.

Amendment No. 154 seeks to insert a new subsection into section 143, which would provide that where a designated institution of higher education departs from guidelines, codes or policies, the institution be afforded an opportunity to provide an explanation as to which parts of the guidelines, codes or policies it is departing from, the extent of any such departures and the reason for the departures.

I am conscious that the comply-or-explain principle was something that had been put forward by some of the universities. I have put my own version of it here because there are areas where it is appropriate to have a comply-or-explain approach and where an explanation might be provided. However, there are certain areas where there are implementations regarding equality, human rights and so forth where I believe that an option of explanation should not be sufficient because those are matters which directly affect the rights of others. I have somewhat caveated the comply-or-explain discussion and proposals that have been put forward by saying it is appropriate in some areas and there are other areas where compliance might be required if there is a potential negative impact, for example, in regard to the rights of individuals. However, I do think that this explanation process could allow for constructive learning on the part of an t-údarás in regard to what governance mechanisms are working well and effectively in each institution. That completes what I have to say on this grouping.

I want to speak to amendment No. 51, which is a significant amendment in the context of the advocacy role. This is something that I raised and discussed on Committee Stage. It concerns the relationship between the Minister and the Department and the HEA. One of the elements that will be crucial is the memorandum of understanding that will be entered into between the Department and an t-údarás. I understand the position that Senator Higgins is coming from. However, it does beg the question as to whether an t-údarás could freely express its view on almost any matter with regard to higher education, which is what this amendment would provide. While it is right for the HEA - the legislation allows for this - to provide statistics and information and contribute towards the public debate, what this would allow would be for an t-údarás to act almost independently of the Minister. At the end of the day, the Minister is the one who is ultimately accountable to the public for what happens within the higher education system. The job of the Higher Education Authority is to advise, regulate and so on, but it is not the HEA's role to set broad higher education policy. In that regard, while I understand Senator Higgins's position and I agree that it is important that public debate is influenced by information and statistics being put out there, the relationship between the Department and an t-údarás is going to be crucial. To include the type of provision proposed would inevitably potentially lead to conflict and would cause me some concern.

Academic autonomy is well protected in this Bill, and within other legislation, so there is nothing to prevent higher education institutions, as they do quite freely now, from speaking out on any higher education issue. A university president is entitled to speak on an issue of concern to him or her and, on occasion, has even disagreed with Government policy in particular areas. The question here, however, concerns an t-údarás speaking out, which is different in that it is a State agency and does not enjoy the same level of autonomy. In that regard, I have significant difficulty with amendment No. 51. Speaking from experience, it is crucial that the memorandum of understanding that is entered into between the Department and an t-údarás around functions and roles will be particularly important.

I will speak to amendment No. 49. I have a lot of paperwork in front of me. The amendment is nothing particularly extravagant. I do not know why guidelines would not also be published under section 11, in addition to being issued under subsection (1) . I am not sure of the differentiation between them. It would be good practice if one is going to publish one to also publish the other.

I will speak on the amendments that have been tabled, and follow on from what Senator Malcolm Byrne said about the advocacy role of an t-údarás. It is an agency of the Government. There is also a role for the board of an t-údarás, which is outlined in sections 15 and 16, and concerns the membership of an t-údarás. It has 11 ordinary members plus a chair, with a 40% gender balance. The section allows the board of the HEA to put policies, guidance and regulations together for HEIs and many other areas outside of this. I do not see the rationale in it being able to freely express views outside of that.

In terms of the other points raised by Senator Higgins in connection with the amendments on the funding section, Nos. 149 to 154, on the issue of guidelines, codes or policies, the Senator has just given an update on the section. I apologise, as the amendment I speak to is Senator Hoey's. The amendment relates to the trade union representatives of both academic and professional staff. It is important that the governance of the HEIs is effective. It is also important that what we do with the Bill is ensure that the funding that has been allocated will be used in a way that is going to make a difference for roles at third level. That is where we will be looking at the governance within the HEIs as well.

I will speak very briefly. I can see where Senator Malcolm Byrne was coming from with respect to amendment No. 51, but I am a little concerned that an t-údarás may be silenced by a Minister, while the heads of higher education institutions may voice their views. I may be wrong, but that is my understanding. The Minister might clarify the position for me. Is it possible that the president of a university might have some negative comments to make about higher education policy, and is there a likelihood then, given the overarching role of an t-údarás, that the institution in question would be disciplined for speaking out against Government policy? Could the Minister please clear that up for me as I am a little confused in that regard.

I assure Senator Craughwell that one of the great strengths of our sector is that there is regular, open, critical comment and dissenting views. It is one of the very healthy things about higher education and the university sector. Whether one is a university president, trade union representative or student union representative, it is a very can-do and collaborative sector, but it is also very vocal. It is a sector that quite rightly feels free to express its opinion in every and any guise. That is appropriate.

It is very important that we understand and differentiate the role of the HEA. The HEA is not the Minister, the Department or the Government, nor is it an autonomous HEI. It is a State agency of the Government, and it has a very specific job. Senator Craughwell is somebody who rightly likes to hold people to account through various committees. The line setting is very important and we must set out very clearly who does what in terms of roles. If someone has a problem with funding policy or policy in general, the conversation must be had with me. If someone has an issue with the individual running a university, that is a matter for the president and the governing authority. It is very important that there is clarity as to what I as Minister and my successors do, what the Department does, what the HEA does and where it sits in that system, and what HEIs do. What this legislation is endeavouring to do is to begin to outline and explain the role of each. That is quite a healthy thing.

I agree with Senator Malcolm Byrne, who knows the situation at first hand. The memorandum of understanding between the Department and the HEA is crucial. The HEA is an extremely important resource for the Minister, the Government, the sector and the Oireachtas in terms of the advice, research and data it can provide, but it is not the body that sets policy.

That is me and the Department. That is the difference. With the amendment, if I wanted to issue a direction to the HEA then I would have to consult the board of an t-údarás. I truthfully believe that this would confuse the governance. A Minister does not need the permission of the board of an t-údarás to ask an t-údarás to do something. The board is accountable to the Minister. In practice, of course, the relationship is much more collaborative. The Minister of the day does not need to seek the permission, approval or opinion of the board of the HEA before issuing a direction to the HEA. I cannot think, in my ministerial experience, of another example where that would be the case. Would we ever ask the Minister for Health to have to meet with the HSE board before he was to ask the HSE to do something? The HEA is different here from the whole issue of autonomy around higher education institutions. The HEA is very clearly a State agency, an agency of the Government, an agency of my Department, and is responsible to me, as Minister, through the board.

I will also address some of the other amendments. I have dealt with my view in relation to amendments Nos. 45 to 47, inclusive.

On amendments Nos. 48 to 50, inclusive, section 12 provides that the Minister may issue guidelines in writing to an t-údarás for the purposes of the Act. This section also provides that the guidelines issued may relate to codes of practice for governance, other codes issued by another Minister, policy, guidance or changes. It is important that the Minister has power to issue guidance to an t-údarás.

Amendment No. 48 proposes that the HEA should be consulted on the issuing of guidelines by the Minister. The Bill currently specifies that the HEA is required to have regard to these guidelines, and it is therefore not considered necessary to specify for consultation prior to the issuing of the guidelines.

Amendment No. 49 proposes that the Minister should publish any direction issued under section 11 and any guidelines issued under section 12. Legal advice was obtained on the publication of directions issued under section 11 of the Bill. The legal advice stated that it was not appropriate to publish directions issued by the Minister.

Amendment No. 50 proposes that the Minister shall publish guidelines issued by him or her, and shall lay the guidelines before the House. It is absolutely the policy intent to publish all guidelines. They will not be very impactful if we do not publish them. These will be the guidelines for the sector. It is absolutely the intent that all guidelines will be published. By necessity they will be required to be published. A provision in section 12(2) that the Minister may publish guidelines was included following legal advice. The provision as currently written enables the publication of guidelines issued by the Minister to the HEA, as appropriate, but provides that not all guidelines would need to be published in case, for example, there was a large volume of emails and letters, etc. with regard to what becomes a guideline and what becomes legally required to be published. We will endeavour to get the balance right in that regard.

Amendment No. 51 deals with an important issue. An t-údarás absolutely needs to be free to express its views but again it is back to what is an t-údarás and what is the role of the HEA. I draw Senators' attention to the fact that in the functions of the Bill, section 9(1)(o) states that the HEA shall "advise the Minister in relation to national policy on higher education in accordance with section 14". There are numerous provisions in the Bill where the higher education institutions are consulted around higher education, including on the strategic plan, tertiary education planning, higher education, the performance framework and so on. These provisions ensure that higher education institutions are heard. The objects of the Bill include a provision that an t-údarás shall respect the academic freedom of higher education providers.

I will return to the comply and explain piece. Some amendments include proposals for provisions in section 143 to adequately explain non-compliance with guidelines, codes and policies. I have had very extensive engagement, as I am sure Senators have, with the sector in relation to this issue, specifically with the Irish Universities Association, IUA, discussing the principle of comply or explain. I have also provided a very detailed written response to the IUA on its request for further amendment outlining the details. This is why I do not believe further amendments are deemed appropriate, following legal advice. To be clear - and I have said this on Committee Stage, I have said it in Dáil Éireann and I will say it anywhere I am asked because it is the truth - the policy intent is the principle of comply or explain. I am, therefore, not proposing to make amendments to the Bill in this regard around the inclusion of a specific reference.

I consider that the Higher Education Authority Bill at present reflects the comply or explain principle and is consistent with the autonomy of higher education institutions. I sought legal advice on the issue and it has been concluded, following consideration of the advice, that it is not appropriate to make further changes. The legal advice received considers that the policy intent of comply or explain is already adequately reflected in the Bill.

It is important to note that the Bill requires the HEA to consult designated institutions of higher education or their representative bodies in preparing guidelines, codes and policies. These guidelines, codes and policies cannot just land there. There must be a consultation process with the higher education institutions. The designated institutions or their representative bodies, including the IUA, can provide observations on proposed guidelines, codes or policies when they are being prepared. They can, at this stage, provide any observations on any potential issues with compliance.

In addition, section 143(6) is a reporting provision that provides for the designated institutions to report to the HEA annually on the implementation of their guidelines, codes or practices. This is a reporting provision and provides the higher education institutions with the opportunity to explain any non-compliance to the HEA. The HEA can then have regard to that explanation. We are clear and satisfied that the policy intent on comply or explain is already reflected in the legislation as drafted.

I wish to come back over a number of these amendments. I thank the Minister for his response. I still have a concern. I note that in the Oireachtas Joint Committee on Education, Further and Higher Education, Research, Innovation and Science report and scrutiny of the general scheme of the Bill, one of the key recommendations was that the legislation should ensure there is a strong and independent HEA. I am somewhat concerned that the idea of the HEA being independent from the Minister seems not to be addressed. I believe it was Senator Byrne who said it should not be independent from the Minister. I acknowledge that the HEA is a State agency but I am concerned that the traditional arm's length approach in the context of State agencies, and the idea of independence within those agencies, is somewhat undermined by the provisions in this Bill. In that regard, I note that there is a big difference. For example, everybody has policies but the State and the Government are not actually exactly the same. It is not the equivalent.

I worry that there is a perception of equivalence. We do not operate a winner-takes-all type of politics in Ireland. It is the case that State agencies have their own mandate, which may span across a number of periods of government. Similarly, in the context of the relationship between the Executive and the Legislature, when we are giving powers to the Minister, especially powers around making policies and ideas, it is important to clearly specify which powers are being provided for. The Minister may have policies, but usually the way those policies would be put into effect is either through legislation or through regulation, with the regulation being something that the Oireachtas empowers the Minister to do. The concern is that this is quite widely framed. For example, subsection 11(b) provides for "the implementation of any policy or objective of the Minister or the Government." Again, my concern is not so much the previous line which relates to any enactment, but the fact of "any policy or objective". This is just slightly widely framed. I noticed that the memorandum of understanding, MOU, is referenced, but the caveat in relation to the MOU is not there in the legislation. It is not a reference to any policy or objective of the Minister or the Government that may be drawn in line with the memorandum of understanding. That reference is not there. This is why it is a little bit too widely framed and why I am concerned.

I accept the Minister's bona fides on some of the other areas. I understand the non-compliance point. I had put forward a compromise amendment on that because I feel that a very wide comply or explain provision might be too wide. I sought a compromise between the Minister's position and the Irish Universities Association position. My amendment is effectively a halfway point. I believe this represents a good and constructive compromise.

I accept the point about the an t-údarás consultation already widely provided for. I note, however, that we will come to further amendments on trade union representation, which I may need to press further on the next Stage. That covers my amendments within this grouping.

Amendment No. 70 deals with-----

I am sorry Senator. It is my mistake. Unfortunately, Senator Craughwell cannot come back in again on Report Stage. My apologies.

But I never spoke on amendment No. 70.

It is the whole grouping.

I am only telling the Senator. The grouping is quite extensive. I will not read all of them-----

Looking at the grouping it is very hard to see how one can jump from one place to another place. I was trying to facilitate debate with the Minister that would follow some sort of sequence.

I know but while it is allowed on Committee Stage, unfortunately on Report Stage-----

The Cathaoirleach will appreciate that this is a very important amendment that deals with city and county councils.

The rules are the rules. The rules are that a Senator will contribute once on Report Stage on the entire grouping.

Senator Higgins was allowed in a second time.

Senator Higgins was allowed to speak a second time.

She is the proposer of the amendment.

I proposed this one.

No, you did not.

I did. If you look at it you will see that No. 70 is proposed by me.

You did not move it yet. We have not reached it. It will already have been discussed when we get to it. To be of assistance, we are discussing amendment No. 46 but the grouping, which was agreed in the last debate, is all these amendments, including your amendment. We will get to it, but the discussion is now and you speak once on Report Stage.

You are telling me that the Member who proposes the first amendment in this group can speak a second time, but not others. This is the problem with grouping. It makes a situation where you have ruled us out from making our point.

No, you are entitled to make your point for as long as you wish in your contribution on Report Stage, but you can only do it once.

So when I spoke the last time I was supposed to deal with amendments Nos. 51, 70 and so forth.

That is correct.

Come on, for God's sake.

They are the rules. They have always been the rules. I am only implementing the rules.

(Interruptions).

I can deal with the Cathaoirleach giving me direction here. The rest of the Members should be quiet, if they do not mind.

Thank you, Senator.

By the way, this particular amendment impacts all of us in the Chamber except the Minister, unless there is a change of Government and he finds himself back here with us.

Members have made their contributions.

Perhaps the Minister will address that issue for me as a token of good faith.

It is entirely up to the Minister, but there is nothing further from him. Is the Senator pressing amendment No. 46?

I will withdraw it.

Amendment, by leave, withdrawn.

I move amendment No. 47:

In page 18, to delete line 24.

I second the amendment.

Amendment put and declared lost.
Amendment No. 48 not moved.

I move amendment No. 49:

In page 19, to delete lines 6 and 7 and substitute the following:

“(4) The Minister shall publish—

(a) any direction issued under section 11, and

(b) any guidelines issued under subsection (1),

in such manner as he or she considers appropriate.”.

I second the amendment.

Amendment put and declared lost.

I move amendment No. 50:

In page 19, to delete lines 6 and 7 and substitute the following:

“(4) The Minister shall publish guidelines issued by him or her under subsection (1) in an accessible manner and shall lay such guidelines before both Houses of the Oireachtas.”.

I second the amendment.

Amendment put and declared lost.

I move amendment No. 51:

In page 19, between lines 17 and 18, to insert the following:

“Advocacy role of An tÚdarás and designated higher education institutions

15. Nothing in this Act shall be construed as preventing An tÚdarás, or designated higher education institutions, from freely expressing its views on matters concerning higher education.”.

I second the amendment.

Amendment put and declared lost.

Amendments Nos. 52 to 55, inclusive, are related and may be discussed together. Is that agreed? Agreed.

I move amendment No. 52:

In page 20, line 25, after “Minister” to insert “, following a recommendation from the Public Appointments Service,”.

I second the amendment.

Amendment No. 52 is an important provision. It relates to the concern about the very high level of discretion that is afforded to the Minister in making appointments to the board of an t-údarás. The amendment would require that any persons who were proposed to be appointed to the board would have to be recommended by the Public Appointments Service for such potential appointment. This is to ensure transparency in the process and to add an extra safeguard in respect of the Government. I note that while there was ministerial discretion previously with regard to the appointment of members of the Higher Education Authority, there are significantly greater powers being afforded to an t-údarás, including greater powers in respect of the penalties it may apply to higher education institutions. Given the significantly increased and strengthened powers of an t-údarás it is crucial that there is full clarity regarding any persons who may be appointed to it.

Unfortunately, there have been situations where persons who had been politically appointed to boards in the State have not always delivered the standard we would have hoped for in their performance. It is important that there should not just be a clear independence of the board but that there would be seen to be a clear and transparent process relating to the appointments to the board of an t-údarás. I note that other Ministers have chosen to employ the Public Appointments Service in respect of appointments to significant roles and significant boards in the State. Where there is a board that will be exercising significant power the transparency requirement becomes much more important. In that regard, I urge the Minister to take advantage of the fact that the Public Appointments Service is there. The final decision would be the Minister's, but the Public Appointments Service should have the role of recommending potential appointees.

Amendment No. 54 seeks to address an issue we see throughout the Bill. I have already signalled the very serious concern, which I place alongside the concerns of students unions, about the fact that there is a distinct lack of a requirement for trade union representation of both academic and professional staff either on the board of an t-údarás or, and we will come to this later, on the boards of individual higher education institutions. This amendment would mandate that of the 12 members of the board of an t-údarás not less than two members would be trade union representatives, one representing professional staff and the other representing academic staff. It is not excessive that in a board of 12 members there would be two members who are able to represent those who work in the higher education institutions, either as academics or in the extensive professional staff who work in this area. This is a very important matter.

I will not move amendment No. 55 as I have decided on reflection that this issue is addressed by Schedule 2 in terms of transparency. I was glad to see the point that I inserted in a previous legislative measure has been echoed in Schedule 2.

We have an amendment in this group. I apologise on behalf of Senator Warfield, who would normally be dealing with this legislation. Amendment No. 53 relates to trade union representation on the board of the HEA, academic and non-academic, respectively. The absence of specific reference to trade unions throughout the Bill has been addressed by a number of amendments on Committee Stage, which we welcome. However, it is important that they are represented on the board of the HEA as well as on governing bodies of individual institutions. The inclusion of trade unions on higher education institutions' governing authorities is welcome, but this Bill establishes the HEA with new legislation so it appears to be a mistake not to include trade union representation on the board of the HEA.

I note Senator Higgins has removed amendment No. 55. I fully agree with her on the principle of using the Public Appointments Service. It is used already in respect of the board and it will be used in the future. It is the policy intent to use it. We just do not believe it is appropriate to put the Public Appointments Service, PAS, into primary legislation. Processes can evolve and names can change and so forth, but the Public Appointments Service should always be used for the appointment of people to the board of the HEA. I do not disagree with the Senator in that regard, obviously with the exception potentially of the student representative seat.

With regard to trade unions, I thank Senator Boylan for acknowledging that we worked together in the Lower House to strengthen trade union representation throughout the legislation and to make it more visible in a number of places. My position on the HEA board is that it is a competency-based board, not a representational board. It is absolutely open to members of trade unions to apply and to ICTU to put people forward through the PAS process. It is important that the PAS process is used and that the Minister of the day can operate within that framework.

Debate adjourned.
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