Amendment No. 125 is related to amendment No. 124. Both amendments may be discussed together.
SECTION 16.
I move amendment No. 124:
In page 15, subsection (1), line 16, to delete "but within the constraints of its budget under section 33" and substitute "subject to this Act and to its Charter, Statutes or Regulations".
We had difficulty with section 33 and the constraints imposed on the universities under that section. It is more appropriate to adopt this wording as I did not accept what was put forward in section 33. Again, this refers to the autonomy of the universities. They should be more autonomous in their functions.
This is a major issue. The wording in the section could be improved. One of the functions of a governing authority is "to control the property and the performance of the functions of the university". Amendment No. 125 seeks to change the wording to: "to manage the performance of the functions of the university and to control and administer the property and other assets of the university,". Controlling property and assets is fine but the wording "to control. . . . performance" is not. It should manage performance; "control" is not the correct word to use.
Section 16 provides for the functions of a governing authority. In so far as the effect of Deputy Keogh's amendment No. 124 to subsection (1) will be that the performance and functions of a governing authority would be consistent with the charters, statutes or regulations of a university, the amendment is unnecessary because a university can operate only within its powers as conferred by its constitutional instruments where such exist. The Deputy need not be concerned because that control will exist.
The second part of the amendment, which deals with the deletion of the reference to the budget, is extraordinary. The provision currently provides that a university must act within the resources available to it. This is part of the accountability framework of the Bill which provides significant autonomy to the university but within the constraints of a budget. This is part of the accountability framework of the Act which provides significant autonomy to the university but within the constraints of a budget. No one, in all the consultations on the Bill, has so far suggested that there should not be budgetary control. I cannot accept the amendment. Deputy Martin made a useful proposal in amendment No. 125 which we will take on board.
I do not accept what the Minister said. My amendment seeks to delete "but within the constraints of its budget under section 33" and to substitute "subject to this Act. . . ". This means there will still be safeguards in the Bill.
Amendment put and declared lost.
Amendment No. 125 not moved.
I move amendment No. 126:
In page 15, subsection (1)(b), line 19, to delete "the chief officer and such other employees" and substitute "such employees and officers".
I think the Minister agreed to this definition.
I introduced a different definition so I cannot accept this amendment.
Amendment put and declared lost.
Amendment No. 128 is related to amendment No. 127 and amendment No. 129 is an alternative to amendment No. 128. Amendments Nos. 127, 128 and 129 may be discussed together.
I move amendment No. 127:
In page 15, between lines 26 and 27, to insert the following subsection:
"(2) Subsection (1), or any other section in this Act, shall not deprive the Fellows of Trinity College Dublin of their right to elect the chief officer of the University of Dublin.".
The amendment seeks to retain the existing rights of Trinity College. Other sections guarantee its future rights but we felt it was necessary to include in this section, which deals with the functions of governing authorities, a safeguard in relation to the method Trinity College uses to elect its president, who is its chief officer. The amendments have been well received by the majority of its community and this amendment would copperfasten its right to elect its chief officer.
The amendment proposed by Deputies Martin and Coughlan is unnecessary because there is nothing in the section which alters the selection process for the Provost of Trinity College. All that is required is that the college draw up procedures to ensure participation in the election process by high quality candidates. The provision as drafted allows for flexibility without prejudicing the right of Trinity College to elect its Provost should it so wish. While the Deputy has expressed concerns, I assure him this amendment is not required.
Subsection (2) relates to the exercise of the functions relating to the appointment of staff. I consider it necessary to include that in the section. The appointment of staff is crucially important because it is a function of the university; it dictates the quality of research and teaching and the general academic endeavour. This section specifically requires that it carries out this function. The governing authority is therefore required to develop open and transparent procedures to ensure participation in the selection process by high quality candidates from both within and outside of the university. For this reason, I do not accept Deputy Keogh's amendment No. 128 to delete subsection (2).
It is essential that the appointments process is open and transparent. Deputies will not have any difficulty with that. That is why the Bill provides that the procedures be set down in statute. The process of making statutes, especially in university institutions which are governed by charters, is a formal procedure. It has been represented to me that the provisions as drafted would create difficulties for some universities. Amendment No. 129, therefore, seeks to ensure that a university has flexibility in deciding how its selection procedures are drawn up. I will introduce flexibility in the procedures but I must be satisfied that the procedure for the appointment of staff will always remain open and transparent. I propose to provide in section 29 that the regulations relating to staff appointments be published in the same way as statutes. In that way, we will balance the concerns.
Although the Minister believes she has gone some way towards alleviating the concerns expressed, there is no need for subsection (2). The university's autonomy must be respected, but it is unnecessary to set that down in statute. By doing so, the Minister is telling universities there is something wrong with the way they make appointments, which is not fair. I accept the Minister thinks she is alleviating the concerns expressed, but it is interfering in the operation of universities.
The third pillar is the balance between autonomy and transparency which the Deputies acknowledged I had achieved. I am giving the institutions autonomy to decide on procedures. I am moving away from having any of those procedures remain outside the public domain even for existing staff. I have asked that while their autonomy should be recognised and respected, their decisions should be transparent. Deputy Keogh's concerns do not meet the principles underlying this Bill. I tabled amendment No. 129 to strike a balance between autonomy and transparency.
This section is telling the universities that they must do something. It is not just about transparency. If it were, we could simply put in a line saying that all procedures for the appointment of staff should be fully transparent. In the preparation of the section, did the Department carry out an audit of all existing procedures in universities? Is the Department fully aware of the appointments procedures in all the universities covered under this Bill? My understanding is that there are already very detailed procedures in place for the appointment of staff in any university. Did the Minister receive submissions from employers' representatives, trade unions, staff associations or representative bodies to the effect that they were unhappy with the existing selection procedures? What is the motivation for this section? My reading of the Bill would suggest that somebody is unhappy with the existing procedures for the appointment or selection of staff. Otherwise, there would not be any need for a section such as this.
Within industry, people are sometimes head hunted because of their ability or expertise in a particular area. Would this provision necessarily exclude somebody in that context if this is laid down in regulation or in statute? Does it mean that the entire process would have to be adhered to for any position which arises? I do not think anybody would object to there being a process in place which should be followed. However, if somebody with particular expertise is being sought for a certain position, it may not be necessary to go through the process. That is why I do not think this section is really necessary.
A university should have flexibility in this area and I am not sure, from what the Minister said, that sufficient autonomy or flexibility would be allowed. I agree, as does Deputy Martin, with the point the Minister is making about transparency — we should know what is going on — but I do not think it is necessary to actually lay down the procedures. In some circumstances, it might prove quite obstructive. If an outstanding candidate is available to fill a position and is willing to come and work in the university, it should be allowed to head hunt them. Anyone in a company would have that kind of flexibility. We are putting too much of a constraint on the universities.
There is nothing in this Bill that would prevent that happening. The decision would be a transparent one. The Bill states that the "governing authority shall develop such interview and other procedures as in its opinion will best ensure . . . ". There is nothing to say that the universities cannot be flexible. It is a statement of good practice in order that decisions will not be made behind closed doors and that existing staff will not be excluded. The governing body must balance autonomy and transparency.
The information as to how somebody is appointed must be available. It has not been easy to strike a balance between autonomy and transparency. We are seeking to ensure good practice. This has been acceptable to those we have spoken to. The principle of transparency was developed by my Department and the governing body has been allowed to discuss its procedures; they are not necessarily the procedures to be laid down for every job at every different level. The requirement is that the governing body is transparent in regard to the process. It may be an increasing practice to head hunt people, as Deputy Keogh has mentioned, but the overall concern is that the process would be fair and transparent.
Has there been an audit of the existing procedures and is the Department satisfied with them?
This was put in as a statement of good practice.
What worries me is that this is a classic semi-State job.
I did not realise that the Deputy's party had a particular difficulty with semi-States. It is not seen as that.
That is not what I meant. I have no problem with semi-State bodies doing their work but I have a real problem with somebody trying to cast the universities in the same mould.
I do not share the Deputy's concerns. He asked me if I had a problem with it and I have not.
Did any of the staff associations or the trade unions come to the Minister and express dissatisfaction with the appointments procedures?
They did not. However, as I said earlier, the development of the principle of transparency is one that has emerged on our side. The principle was developed in order to strike a balance between the autonomy of universities — which led to interesting discussion and debate — and making the process transparent. This is my way of responding to the challenge of ensuring there is transparency.
I suggest that this goes further than ensuring transparency. A section or a line could easily be put in saying that whatever procedures are agreed by the universities would be transparent. This actually states that those procedures must be specified in statute. Specifying something in statute gives it the force of law.
It is to be specified in the statute of the university by which they are governed.
Yes, but that statute has the force of law. That is a very important basis on which to put anything in statute in a university context, particularly anything concerning conditions of employment. It is better than what most of us enjoy.
The universities governing authorities will decide whether it is to be regulation or statute.
Yes, but the procedures would be specified.
This may be one of these occasions where we must agree to differ. In the statement of good practice and in the development of my principle of transparency, we have gone a good way on the autonomy but we have ensured transparency.
In the scenario that I described, if an outstanding poet laureate was invited to become a professor of English in a university and the procedures that were laid down in statute or regulation were not adhered to, the situation might arise where a jealous member of staff, who might be a very fine candidate but who would not hold a candle to the poet laureate, might want to apply for the job. Would that person not be in a position to challenge the appointment under this section of the Bill? They would be perfectly within their rights to do so. The section could prove very cumbersome and difficult. I can appreciate the point the Minister makes about transparency but a more simple approach could be taken to make the procedures more transparent.
The statute is a legal instrument. I was on a governing body of a university in the past where there was an attempt made to abolish certain statutes in order to amalgamate three separate history departments. Initially the process was slow but happily agreement was reached. Once one puts something into statute it is not easily changed. Senator Lee has been a tremendous asset to the history department in UCC. People of his calibre are headhunted and add something to their faculty and the university.
Does the Deputy want to be sure one can do this?
Yes.
Section 29 (1) states:
a governing authority may, and where required by this Act to do so shall, make such and so many statutes as it considers appropriate to regulate any matter relating to the affairs of the university.
The governing authority can set regulations and amend them. If the body meets to decide on the appointment of a head of a faculty, it has the power to make its own regulations. This section states that when this is done it must be done transparently. If Senator Lee was to be replaced he would have to know about it. The Deputy's concerns are ill founded. The governing body is being given strong powers but where these are exercised they must be transparent.
Is there not a conflict if one gives the governing bodies power to introduce statutes?
The governing body is elected and its members must come to a decision.
Once one lays down procedures one cannot easily throw them aside.
I cannot believe that we are making so much of this.
I agree with the Minister. On the one hand this could be meaningless but I remain unconvinced by the arguments being put forward. All I have heard is a statement of good practice. No one has made representations about this or uttered criticisms of existing procedures so I am totally unconvinced. If the Minister thinks this covers everything why does she not leave section 29 and delete this?
I am concerned about transparency.
We have heard that for four years and it is driving people mental.
I am satisfied the institutions can have their autonomy yet be transparent.
The word "transparency" gives people blood pressure. I do not see the need for this.
That is the Deputy's opinion.
The Minister's reply to amendment No. 27 was not necessary. Do I take it that its inclusion would not cause any damage?
The Deputy has assured the university community that he does not have a difficulty with the Bill. I would like to move on. I assure the Deputy that it is unnecessary to add and subtract from the Bill so it seems extraordinary to ask me to come back on Report Stage on something about which he does not have strong feelings. There is nothing in this section which alters the selection process for the Provost of Trinity College and the college shares my opinion on this.
The Minister said I have assured the university community.
I believe the Deputy has.
There must be tick-tacking going on between the Department and the university heads and the implication is that we are stalling the Bill. I take exception to that. I have said we welcome all the major amendments but we should not isolate the Legislature from the entire process.
I do not intend to do that.
I am uncomfortable about the notion that, because everything has been agreed outside, we are irrelevant.
It is not appropriate that we just fall into line.
I am annoyed there is an implication that we have assured the universities that we should not discuss our amendments.
When the Deputy suggests an amendment is not really necessary I would say that the time involved in my assuring the Deputy that his concerns are unnecessary is not well spent. I have agreed to come back on Report Stage.
I do not want to waste time but we need more convincing arguments than for the Minister to say that something is not necessary.
I assure Deputies that all that is required is for the colleges to draw up procedures to ensure there will be participation in the selection process by high quality candidates. The provision allows for flexibility without prejudicing the right of Trinity to elect its Provost if it so wishes.
The Select Committee adjourned at 4.10 p.m.