Amendments Nos. 140 to 144, inclusive, are related to amendment No. 139. Amendments Nos. 139 to 144, inclusive, may be discussed together. Is that agreed? Agreed.
SECTION 18.
I move amendment No. 139:
In page 16, subsection (1), line 39, to delete "not being duly and effectively performed" and substitute "being performed in a manner which constitutes a breach of the laws, statutes or ordinances of or applicable to the university".
Section 18 provides for the suspension of a governing authority. This provision is an exceptional measure. Nevertheless, the Government should have the power to ensure that, in cases of serious breakdown in the operation of a university, it can take direct action to protect the interests of the students, staff and the wider community by temporarily placing a body in charge of the university to remedy the situation.
The provision as published has a number of important safeguards, including the consent of both Houses of the Oireachtas. Notwithstanding these safeguards, many in university communities see in the power of dissolution a risk to university autonomy. The amendments I propose to this section — Nos. 139, 140, 141 and 143 — provide further safeguards in the form of objective assessment of the necessity for dissolution. The Minister must be of the view, having received the reports of the visitor, that the functions of a university are being performed in a manner which constitutes a breach of the laws, statutes or ordinances of or applicable to the university. This is a more onerous requirement than is at present contained in the Bill. Furthermore, the visitor must concur with the Minister that the governing authority should be suspended. If the Government makes an order suspending the governing authority, it will be the visitor rather than the Government who, following consultation with the Minister, will appoint a person or body of persons to perform the functions of the governing authority in the period before a new governing authority is put in place.
These additional safeguards address all the reasonable concerns about the position. I have arrived at a balanced set of provisions which will enable a Government to take necessary action but only if it is required. Again, we are talking about a breach of the laws, statutes or ordinances of the university. Deputy Keogh proposes, in amendment No. 142, that the suspension of a governing authority should only last for one month. As we are referring to such exceptional matters as a suspension of a governing authority, a period of one month would be too short for the affairs of the university to be put in order before a new governing authority comes into office. I cannot accept the amendment. Given the gravity of the situation, one month would not reflect its importance.
This section is opposed. The section as drafted was flawed. It is unbelievable that it should include the phrase, which admittedly the Minister seeks to delete, "not being duly and effectively performed". What was that supposed to mean? At least the Minister is being more precise in her amendment. However, even with the inclusion of the new wording, we should not support the section.
The Minister, in referring to amendment No. 142, said a month would not reflect the difficult nature and seriousness of the matter and would not give sufficient space. However, it would reflect the importance of the issue by providing that it be dealt with very speedily. That is what I am trying to achieve.
This is the most unacceptable section in the Bill. It is a remnant of the original Bill in which there was a definitive attempt to impose an unacceptable degree of State control over universities. What is the motivation for this section? Can an example be given to date of a major act of illegality, scandal or outrageous behaviour on the part of universities which would merit suspension of a governing authority?
There is a need for trust in the relationship between the State and universities. Like section 17, this section represents a fundamental breach and change in the relationship between the State and universities and threatens and undermines the intellectual independence of the university sector. The State has reserved the right to suspend the governing authority of a university in certain circumstances.
It cannot be predicted what future Ministers or Governments may do or what political configurations may be formed. Once a law is enacted it is subject to subsequent interpretation. It is of little point in ten years' time to say it was not intended for the section to be used for a certain purpose. If a person feels they can use the legislation to invoke certain powers, they can do it. There must be a clear separation between the State and universities because their independent voice has been important for Irish society in terms of their having the self-confidence and right to speak out on a range of issues without fear of retribution or punishment. That is undermined by this section.
It could be argued that, were something appalling to happen, there are mechanisms such as Acts of the Oireachtas which could be invoked. By virtue of including this section in the Bill, we are saying that we envisage universities being guilty of a major illegality or a major act of misbehaviour which would merit the suspension of the governing authority and that we are preparing ourselves for such an eventuality. We are putting into law a process which could, over time, be used and invoked on a regular basis by politicians in Government. We cannot predict what will happen in the future.
If the semi-State sector is examined, it will be seen that there have been political motivations behind the appointment of various people in that they were appointed to carry out a Minister's mission. If conflict arose between a future Minister and a university over some issue, this mechanism could be used by that Minster to exact retribution. We cannot predict what people will do with the legislation.
We do not have an exact definition of what would constitute the necessity for someone to intervene. We have some unimagined scandal which the Minister does not want to specify. I understand that because I do not think the Minister has a clear idea what that scandal would be. We do not have a clear idea of what would constitute a breach of the laws, governance and statutes of the university or of what scale it would have to be to justify the suspension of a governing body. Some future Minister could say that, having read the Bill, they consider a certain issue to be a major one which constitutes a breach and would consequently appoint a High Court Judge to suspend the governing authority.
There are mechanisms, such as the Higher Education Authority, the Comptroller and Auditor General and the Committee of Public Accounts, which can be used for the purpose of monitoring universities. Therefore, this section should be deleted and the State should not have this inspecting role or the right to suspend governing authorities which have worked extremely well and performed admirably since 1908. It is sad that, because of the nature of the funding relationship between universities and the State, it is felt necessary to increase the State's influence over the universities which is a threat hanging over them. This section is not necessary.
It is interesting that the Minister could not think of an awful incident which would lead to the necessity for these sections. That is an important point. Nothing awful, horrendous, dreadful or appalling of which we are aware has happened within universities. Mechanisms already exist. Were an horrendous event to happen, an Act of the Oireachtas could be introduced so that the incident could be debated in the public arena and this would be the final arbiter. The Minister cannot rely on what she sees as her good judgment. She may be a fair person but we must look to the future. A future Government or Minister could adopt a much more autocratic approach and attitudes could be interpreted as being contrary to the governing principle of the university or executive decisions made by a governing authority and could be disagreed with. In those circumstances, there could be an element of fear of the Minister's power under these sections. That may be as unlikely as the Minister said but, conversely, it could happen. Intrinsic to any debate on the Bill must be an awareness of the role and autonomy of universities in society. This section should be examined to see if it is necessary, especially in the form presented to us.
It is worth repeating that the visitor must be a High Court Judge appointed by the Government and that he or she must agree that the matter is so serious as to require a visitation. The Minister must then make a decision after the visitor makes his or her report, having first established that the matter is of grave consequence. We are talking about people operating outside the law and I do not understand why Deputies opposite seek protection for such people.
We do not.
The Deputy should read the amendment.
We say the mechanisms are already in place.
Read the amendment. It is very specific. We are talking about actions being performed in a manner which constitutes a breach of the laws, statutes or ordinances of or applicable to universities.
Who determines that?
The visitor.
No, they do not.
May I please state my side of the argument? I have listened to the Deputy. I am also pressing my amendments.
The visitor must be a High Court Judge appointed by Government and he or she must agree in their first report that the matter is so grave it requires a visitation. The visitor then makes a further report, the Minister makes a decision on the grounds of that report that there should be a dissolution and the visitor must agree to that. The Government must also agree to the dissolution and there will be a motion before the Houses of the Oireachtas as well. The visitor then appoints a replacement with the outside limit of a year.
Deputy Keogh proposed that the Houses of the Oireachtas should deal with this matter. However, both Deputies counselled me against presuming that any Minister, less wise than myself, would at a whim decide to dissolve a university. I propose something more substantial so that we would be protected when there is no potential for scandal. We have put a mechanism in this legislation by which a visitor will be appointed and perform the duties and the visitor, the Government and the Minister would place a positive resolution before the Dáil. This means that in an emergency, we would not be faced with somebody overnight dissolving a governing body. Mechanisms are being put in place which will guard against such a move and outline the status of the visitor and how they perform their duty. The report will be brought to the Minister, who brings to the Government.
I accept Deputy Martin's point that the Houses of the Oireachtas must be involved. We are protecting the investment of the State by introducing a mechanism which will come into operation only where someone is in breach of the law. This mechanism will be available to all universities which operate under this legislation.
Who initially forms the opinion there has been a breach? As I read the Bill, it is the Minister.
The Minister does and then calls in a High Court Judge. There are two opinions — that of the Minister and the High Court Judge.
The Minister has confirmed what I wanted to establish, which is that the Minister forms the initial opinion. The visitor comes in——
The visitor must confirm.
I know that but the Minister forms the initial opinion.
Somebody has to invite the visitor in cases of serious breakdown in the operation of the university.
The Minister must first establish that there are reasonable grounds for contending there has been a breach of the laws and governance of the university. I take it that the existing laws of the land will continue to apply to university personnel as well as anyone else in society.
Nobody is above the law.
The idea that someone guilty of major embezzlement in a university could escape the rigours of the law because we do not pass this section is untenable. It was suggested that we are trying to protect someone who may, in the future, commit a wrongdoing. We are not trying to do that. State mechanisms already exist to deal with financial controls over a university and other areas. The Higher Education Authority has a strong working relationship with universities as regards the funding of faculties.
The thrust of this Bill as originally framed was the creation of a semi-State model out of the universities and it has been substantially amended as a result. We have not seen further amendments to sections because there was not a wish to have a complete climbdown on that. I still oppose the section because I have not been convinced by the Minister's arguments on the need for this inclusion. It creates a new basis for the relationship between the Government and the universities which is not a healthy one and could be abused in the future. The Act of the Oireachtas is the final arbiter. No mechanism surpasses this. In any democracy it is a much greater safeguard.
I suggested that the suspension of the governing authority should be debated by the Houses of the Oireachtas. The Minister said that her provision was much better, which I do not accept. In a democracy, the Houses of the Oireachtas drive matters and has the final responsibility. This section makes an assumption that the Government and the Minister expects that there will be wrongdoing within a university. The Minister says we are seeking to allow people to flout the law, which is not the case. Nobody is above the law. There are mechanisms in place already. I do not accept the proposition that there will be wrongdoing in a university. I accept that individuals are not above the law and should be subject to due process but sufficient mechanisms are already in place.
Amendment put and declared carried.
I move amendment No.140:
In page 16, subsection (2)(a), line 47, to delete "not being duly and effectively performed" and substitute "being performed in a manner which constitutes a breach of the laws, statutes or ordinances of or applicable to the university".
Amendment agreed to.
I move amendment No. 141:
In page 16, subsection (2)(b), line 49, after "suspended" to insert "and the Visitor concurs".
Amendment agreed to.
I move amendment No. 142:
In page 17, subsection (3), line 5, to delete "year" and substitute "month".
Amendment put and declared lost.
I move amendment No. 143:
In page 17, subsection (4), line 9, to delete "it may appoint any person or body of persons as it thinks fit" and substitute "the Visitor to the university shall, following consultation with the Minister, appoint such person or body of persons as the Visitor thinks fit".
Amendment agreed to.
I move amendment No. 144:
In page 17, subsection (6), line 17, to delete "On the expiration of the" and substitute "No later than the commencement of a".
Amendment put and declared lost.
Question, "That section 18, as amended, stand part of the Bill," put.
The Select Committee divided: Tá, 12; Níl, 9.
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Tá |
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Bhreathnach, Niamh. |
Flaherty, Mary. |
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Bradford, Paul. |
Hogan, Philip. |
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Bree, Declan. |
Kemmy, Jim. |
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Byrne, Eric. |
Kenny, Seán. |
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Costello, Joe. |
McGinley, Dinny. |
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Crowley, Frank. |
Sheehan, P.J. |
Níl
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Níl |
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Brennan, Matt. |
Hughes, Séamus. |
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Browne, John (Wexford). |
Keogh, Helen. |
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Byrne, Hugh. |
Martin, Micheál. |
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Coughlan, Mary. |
Moffatt, Tom. |
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Flood, Chris. |
Question declared carried.