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Seanad Éireann díospóireacht -
Wednesday, 6 Jul 2022

Vol. 287 No. 2

Higher Education Authority Bill 2022: Committee Stage

SECTION 1

I move amendment No. 1:

In page 11, to delete lines 29 and 30, and in page 12, to delete lines 1 and 2.

I understand the Cathaoirleach with his usual graciousness will allow me to make a general statement.

Whatever the Senator wants.

Today is the 40th anniversary of the death of Terence Higgins after whom the Terence Higgins AIDS trust was founded. It is worthy of note by Seanad Éireann in view of the tragic consequences of that epidemic. I would like also to recognise and thank my colleague, the vice-chancellor of University of Dublin, Dr. Seán Barrett, who is with us today in the Visitors Gallery. He is a distinguished former Member of this House and has provided me with a considerable number of amendments, not all of which I imagine we will reach today.

The Bill is all about accountability and responsibility, giving people explanations and allowing them to know what is happening. I am sure the Minister, who is a decent and open-hearted man, will agree with this. The Seanad, as a review Chamber, is absolutely vital to us today in our democracy.

This 142-page Bill has serious implications for Ireland because it will make Ireland a country that will not tolerate even one autonomous university. This is about autonomy. Trinity College Dublin, TCD, in particular, has a very distinguished historical background, as, of course, has Maynooth University, which was founded in the days before Catholic Emancipation. The Bill is a power grab of the permanent Government in Ireland - the powerful, senior bureaucracy. What started as a review of the first 50 years of the Higher Education Authority, HEA, has today become an attack on the university sector, which is 430 years old. It is a sector that has served Ireland well and should not be under attack in this Bill. I remind the House that the TCD features in the list of the most distinguished universities in the world. It is compiled every year or so. The Bill has not been widely debated in either the universities or wider society because of a democratic deficit. Debate in our universities has been prevented for two and a half years because of Covid-19 restrictions. In the fullness of debate for which the Irish universities are famed, this legislation, if needed at all, would have been improved by debate on every campus in the country. Again, this is about openness and accountability. Recently, the Taoiseach called for a controversial appointment at TCD to be paused. This Bill should also be paused, as in the words of the Taoiseach.

Far too few people have been involved in its preparation. The Bill proposes layers of extra bureaucracy in the HEA and in the colleges on the assumption that Irish universities underperform and that the Bill offers a cure in this regard. Irish universities and colleges do not underperform. The Bill’s prescriptions are so badly grounded that they are likely to harm a sector that has served the island of Ireland and the world of learning so well. I speak as a representative of a college that has provided three Nobel prize winners in recent decades, namely, Samuel Beckett, Ernest Walton and William Campbell. We are very proud of them.

Let me add to the cheeriness of this debate. The Central Statistics Office, CSO, reported on 29 November 2021 that Irish participation in third-level education, at 63%, is higher than the EU average. This, again, is something of which we can be proud. We have always been known as the island of saints and scholars. In the dark days of the early 19th century, when there were hedge schools, people showed their devotion to learning. In fact, many people, including ragged children in the ditches, were able to understand and read Latin and Greek, which was a remarkable achievement.

In its 2019 education report, the OECD reported that young Irish people have the fourth highest standard of education in the world. Ireland is now a full-employment economy with, as IDA Ireland companies report, a strong pool of skilled and diverse talent. Year after year, the IDA reports that the skilled and talented Irish labour force is the main reason Ireland attracts so much foreign direct investment and so successfully serves the European Single Market. In recent days, the Tánaiste has announced a review of industrial policy. Perhaps he and the Minister, who are rumoured to be rivals within the Government should-----

(Interruptions).

My script says perhaps they should have a chat.

The Department of Enterprise, Trade and Employment’s annual budget is just short of €900 million. IDA Ireland and Enterprise Ireland firms employ some 475,000 people. The agencies do not appoint people to the boards of the enterprises they finance. The reward to Irish society is the employment they create, rather than seats on these companies' boards. Should the reward to Irish society from successful universities, such as TCD and others, be the graduates they produce rather than a handful of seats on governing bodies?

On the international stage, Irish degrees and qualifications are eagerly sought after. Irish graduates are welcome entrants to the great graduate schools of the world as they pursue postgraduate qualifications of the highest rank. Irish third-level education is decentralised, diverse and serves its students and society well. It is flexible, student-centred, international and, heretofore, reasonably bureaucrat-free. This Bill is bureaucratically intense and based on quangos. It sits uneasily in this parliamentary democracy. It proposes to reduce the number of people democratically elected to the governing bodies of universities and asks our democratic Parliament to support reducing the role of the ballot box. Elected academics, elected non-academic staff and elected students are to be reduced in numbers, to be replaced by others whose route to the governing bodies is not specified by this legislation. Why should the Oireachtas agree to this?

The Bill seeks to amend charters and letters patent which predate the foundation of the State. The Ceann Comhairle's request that these documents be lodged in the Oireachtas Library to be consulted by Members was rejected by the Minister. Why? The Minister is looking puzzled, so perhaps there is an explanation. Perhaps he does not know, or perhaps there is somebody lower down the chain who refused to put those documents in the library. It would be interesting if the Minister were to be able to get an answer to this for me.

Respect for the Chair is a bulwark of our democracy. There is a total disparity between the position of the Minister, who has advised that charters and letters patent can be readily emended, and those who believe that charters and letters patent are binding on both parties in perpetuity. The latter viewpoint was strongly expressed in the US Supreme Court judgment in the Dartmouth College case in 1819, which overturned state intervention in the governance of that college. Members should have been allowed to peruse these documents.

My amendment seeks to delete these lines on pages 11 and 12 of the Bill: "This Act, other than sections 85, 86, 87, 95, 97, 98, 99, 100, 101, 102, 103 and 105, shall come into operation on such day or days as the Minister may by order or orders appoint either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions".

I welcome the Minister to the House. I qualify that welcome, however, with the following. When we were on Second Stage of this Bill, I and Senator Craughwell drew to the Minister’s attention that this was an important Bill, far-reaching in its consequences, and that it could not be rushed through. To be particular about what was said, I said:

This Bill needs very serious further consideration. It should not be guillotined and it should not be rushed through.

Senator Craughwell spoke about the fact that even the Minister’s own speech was reduced to 15 minutes. He continued by saying that he sincerely hoped:

...we do not go down the silly route of guillotining the Bill at some stage before the end of the session. We can always come back to it in September.

It might be thought that those were reasonable requests. In reply, the Minister said:

Unlike in the other House, I am not a Member here. The Seanad orders its business as the Members wish to order its business. I am here to genuinely engage in good faith. We genuinely engaged on the issue in the Dáil. We did not just come in and use our Dáil majority to say, "Thanks very much, good night and good luck." We brought forward 179 amendments. While they were all brought forward in my name, bar one, many of them arose from Opposition contributions

Later, the Minister said:

... as I mentioned earlier. I am here to engage in good faith. It will take the time that it takes, and we will work our way through it. I would not be so rude, as a Member of the Lower House, to try to tell the Upper House how to do its business.

The Minister then stated, "We took steps in the Dáil, which I am sure we will be able to tease through on Committee and Report Stages, to further strengthen the importance of autonomy". This is what the Minister said in this House.

Therefore, the Minister can imagine my shock when, without any warning whatsoever, the Deputy Leader this morning proposed an Order of Business guillotining this Bill this afternoon. I do not know whether the Minister is aware of it, but the Deputy Leader gave a full explanation as to why she was guillotining it. Sadly, it turned out that it was on the express instructions of the Minister that the matter had to go through-----

Let the record show that the Minister is shaking his head.

I did not intervene.

That is what she told us. The Deputy Leader said it was on the Minister's express instructions-----

She did not hear it from me. I do not know where she got that. The Deputy Leader did not speak to me.

I am sorry. I did not say that she spoke to the Minister.

Then do not speak for me either.

Let us not use weasel words here.

The Deputy Leader told us-----

That is not true now.

She told us that the Minister had made it clear that the Bill had to be guillotined-----

She is wrong. I am the Minister. I am aware of what I say and what I do not say, thank you.

Sorry, it is not what-----

It has been guillotined.

-----the Minister said. It was on the Minister's instruction.

It was not on my instruction.

Who guillotined it then?

I do not know who guillotined it.

Through the Chair. The Minister will be able to respond. I call Senator McDowell.

I strongly doubt that we are being told the full truth. I refer the Minister to what was said-----

By whom? By me?

I refer the Minister to what went on in Westminster when on BBC Radio 4 an individual said that it was possible to construct a statement and for it to be true, but with your fingers crossed.

That is a terrible slur.

The Deputy Leader indicated to us that she had gone and sought instructions as to whether she could allow a lengthier debate, and that the Minister had made it clear that this legislation had to go through this House on a guillotine because it had to go-----

That is not what was said. On a point of order-----

I ask Senator McDowell to give possession-----

On a point of order, I, too, was here on the Order of Business-----

The Minister had indicated he wanted to come in.

What is the point of order?

I was present for the Order of Business this morning and I listened to the Deputy Leader, who spoke about the legislation before the House today. She indicated that she had looked to see whether there would be an opportunity. She did not indicate that she had spoken directly to the Minister. She indicated that she had asked for time on this legislation. I believe the Minister is right to come back on this. If we go back to look over the comments, it will be clear. She did indicate that there is a significant amount of legislation to be dealt with and the Bills Office is under pressure. The Cathaoirleach also spoke to that issue.

Does the Minister wish to come in?

To be helpful to the House, what Senator McDowell read out is exactly what I said. It is an exact transcript. I am not a Member of the Upper House and I do not order the business here. To be clear, I did not hear what the Deputy Leader said but she had no conversation with me. This House reached out to my office today. My office said I would make myself available tomorrow but I was told that would not work for the Seanad. My office told the Seanad that I would make myself available on Friday but I was told that would not work for the Seanad. I am delighted to debate the legislation with Senators but I will not sit here and be slurred. I am available tomorrow and Friday but the Seanad is not. It orders its own business.

Either the Government is coherent or it is not. To be clear, nobody said they spoke to the Minister directly.

I am available tomorrow. I am available on Friday.

Nobody said that but the House was informed that, on consultation - through the Leader, I think - it was emphasised that the Bill had to go through this week and that, as a result, it had to be guillotined. That is what we were told.

I am available tomorrow and on Friday.

It is a matter of complete indifference to me whether the Minister is available or not. The problem is that-----

I think the House probably requires me for the legislation.

The Minister will not get away with weasel words here.

Sorry, the Senator should not accuse anyone of using weasel words.

The simple fact is that this House was led to believe that the Government-----

On a point of order-----

Senator McDowell is pontificating.

I ask Senators to be respectful in terms of their language. We have a fraught few weeks ahead, so I want people to be respectful of each other. I ask them to direct their remarks through the Chair.

In fairness to the Minister, he has made himself available. While I have great respect for Senator Norris, there has been extensive consultation in respect of this legislation with the higher education institutions, the Irish Universities Association, Trinity College and the Oireachtas Joint Committee on Education. The Minister and his officials have made themselves available to discuss any of the issues that are raised in the House.

That is not how they see it.

I do not know who Senator Norris is speaking to but everyone knows there has long been demand for reform of the higher education system. With respect to colleagues, the Act dates from 1971. We are dealing with the higher education system of 2022 and into to the future, not that of 1971 or, with respect, 1592. This is not a question in respect of the academic autonomy of institutions. These are questions relating to governance, particularly with regard to financial accountability. It is important that is the case. We have already had Second Stage of the Bill, when there is an opportunity to make general statements. If we are going to debate the amendments that have been tabled, let us do so. I hope colleagues will ensure that eloquence replaces verbosity when it comes to dealing with the amendments. In defence of the Minister-----

An apology is required.

What has been said is not fair on the Minister or the Deputy Leader because it is trying to misconstrue both of their positions. Senator McDowell is aware of the legislative pressure that exists. If less time was spent on procedural theatrics, both this morning and during this debate, and we actually got on to debating the amendments that are before us, then we could have real discussion. We are already 24 minutes into the debate, however, and we have not even dealt with the first amendment.

I have allowed latitude on section 1 and the amendment-----

That is shameful stuff. I was here this morning. We sought extra time but were denied it. It was represented to us that the Deputy Leader had, through whatever channel, sought extra time but it could not be given.

It could have been given.

All I am saying is that this is important legislation. Senator Malcolm Byrne pointed out that it has been 50 years since there was last a Bill on this matter. That is all the more reason that, in dealing with an important Bill of this kind, we should not confine the Committee Stage, with so many amendments having been tabled, to four hours. By the way, what happened this morning on the Order of Business has not in the slightest bit trespassed on those four hours. The four hours started at 3 p.m. and will expire whenever they are due to expire. The Senator is not going to get away with that trick. This is disgraceful. This is important legislation and it is being railroaded through. Most of the amendments will never be discussed, for obvious reasons. That is the effect of the guillotine that is being imposed at the behest of the Government. You are a member of that Government and you could easily-----

Through the Chair.

If the Minister is suggesting the guillotine has been self-imposed by the Seanad-----

-----but we were given the opposite impression on the Order of Business today. I have to protest what has happened here.

What do Standing Orders say?

I resent people coming in with milk and watery explanations as to what happened, who did speak and who did not. Senator Chambers was clear that she had sought extra time and it had been denied to her.

I want clarification from Seanad officials on this because I am going to take this up-----

No, no. The scheduling of business is nothing to do with the Seanad Office. It has to do with the Leader's office.

It has nothing to do with me, though. I have made myself available. Senator McDowell may say it matters diddly-squat to him whether I am here or not. I was asked this morning if I would make myself available. I said I would do so again tomorrow and on Friday.

Who decided not to take the Minister up on that?

I said that to the person who contacted us in respect of this. That was said by me. The Senator can have his own arguments and tiffs. I am not allowing him to suggest in any way, shape or form that I am seeking to guillotine the debate.

The truth is that I am available today, tomorrow and Friday. I am in the hands of Seanad Éireann.

With respect, people saying they are available tomorrow and on Friday is straightforwardly disingenuous. This was the first item placed on the Order Paper this year. The Bill has been on the Order Paper, ready to move, for months but it has been chosen to progress it in the past two to three weeks of this Seanad term. This is about this decision and future ones. My memory in respect of a request having been made and to whom it was made is the same. I concur in that regard.

There is an opportunity. Let us move to the next Stage. There will be opportunities, for example, for the Government and the Leader to give a guarantee that Report Stage will not be guillotined. Perhaps the Minister will state on the record if it is his preference that Report Stage not be guillotined. If that means that Report Stage needs to be continued in autumn, so be it. While the Minister may be available tomorrow or the next day, the fact is that he is not the only Minister in play. There are several other pieces of legislation that are also under time pressure. If the Bill was an urgent matter, it could have been brought forward two or three months ago. It could have been brought forward-----

It was going through the Dáil.

It could have been brought forward at an earlier point. The Minister is bringing it forward before the summer recess and framing it as emergency legislation while at the same time we have been told it is foundational legislation that will change the agenda for the next 50 years. If it is significant legislation that has significant repercussions and we should be allowed to debate it for as long as is required, with that debate to continue in autumn if necessary. I ask the Minister to be clear on whether he is opposing the introduction of a guillotine on Report Stage of the Bill when it comes through next week. I say that as a Member who has put forward more than 100 amendments in good faith, each of which would strengthen and improve the Bill if given the prosper consideration. I do not make apologies for that. For the Minister to say he is available on Friday or we can catch him on Saturday morning is not sufficient.

I recognise the Minister did not say that. We are all working on multiple pieces of legislation and the Minister needs to be clear if he is willing to prioritise a proper debate over rushing through this legislation before the summer recess.

I want to note what was actually said. The Deputy Leader said: "In relation to the HEA Bill, Minister Harris was asked for more time on this. We were told it had to be passed by the recess."

Let that be the last word. We are not discussing amendments, clearly.

There are plenty of amendments to speak to and the Senators have chosen to stand up but not speak to the amendments, which is interesting. This piece of legislation has not been rushed. It has not been described as emergency legislation. Consultation first began on the reform of this legislation in July 2018. The outcome of that was published in July 2019. There was then a further round of consultation. The general scheme to replace the 1971 Bill was published by the Government in May 2021. Pre-legislative scrutiny took place at the Oireachtas committee. It began on 5 July and ran until September 2021. Many of the 17 recommendations arising from pre-legislative scrutiny have now been accepted. The full and final Bill was approved by the Government on 14 December and was published on 7 January.

A total of 179 amendments were made on Committee and Report Stages, with 97 made on Committee Stage and 82 on Report Stage. The Bill passed the Dáil on 22 June. The Bill then came directly from the Dáil to the Seanad. It could not have come to the Seanad any earlier because we have a bicameral system. Legislation has to pass through one House before it comes to the other. There were no weasel words involved and there is no need for somebody I have respect for, namely, Senator McDowell, to use provocative or offensive language.

I am in the hands of the Seanad as to how it wishes to do its business. All I said was a simple statement of fact and the record of this House should be corrected if anyone is suggesting anything to the contrary. I did not seek the curtailment of this debate. I was available to continue this debate tomorrow and was available on Friday but I was told Seanad Éireann was not available.

The Deputy Leader of this House said-----

The Senator has read that into the record.

-----that time was sought and the Minister indicated that the legislation had to be dealt with before the recess. The Minister must take responsibility for the fact the legislation is not going to be debated.

We are on amendment No. 1 which amends section 1.

I support Senator Norris's amendment.

In a refreshing move, I might speak to the amendment.

In a startling new move, we will speak to the amendment.

That is generally how Committee Stage works. Amendment No. 1 is in the names of Senators Norris and Boyhan. I thank Senator Norris for his opening contribution which I will get to as we go through the various stages of the amendments.

The Senator will not be surprised that I am not in a position to accept this amendment because it proposes to remove section 1(2) of the Bill. That is the section which provides for the commencement of the Act by ministerial order with the exemption of certain sections relating to the incorporation of higher education institutions into technological universities. The Senator, as a very long-serving Member of the Oireachtas, knows that this is a standard provision in any piece of legislation. It is necessary to provide for the commencement of different sections of the Act and, therefore, removing it would prevent me from commencing various sections of the Act at various times. That may have been the Senators intention.

Amendment put:
The Committee divided: Tá, 15; Níl, 24.

  • Boyhan, Victor.
  • Boylan, Lynn.
  • Craughwell, Gerard P.
  • Flynn, Eileen.
  • Gavan, Paul.
  • Higgins, Alice-Mary.
  • Hoey, Annie.
  • Keogan, Sharon.
  • McDowell, Michael.
  • Mullen, Rónán.
  • Norris, David.
  • Ó Donnghaile, Niall.
  • Ruane, Lynn.
  • Sherlock, Marie.
  • Warfield, Fintan.

Níl

  • Ahearn, Garret.
  • Ardagh, Catherine.
  • Blaney, Niall.
  • Buttimer, Jerry.
  • Byrne, Malcolm.
  • Carrigy, Micheál.
  • Chambers, Lisa.
  • Clifford-Lee, Lorraine.
  • Conway, Martin.
  • Crowe, Ollie.
  • Cummins, John.
  • Currie, Emer.
  • Daly, Paul.
  • Doherty, Regina.
  • Dolan, Aisling.
  • Fitzpatrick, Mary.
  • Kyne, Seán.
  • Lombard, Tim.
  • Martin, Vincent P.
  • McGahon, John.
  • McGreehan, Erin.
  • Murphy, Eugene.
  • O'Sullivan, Ned.
  • Ward, Barry.
Tellers: Tá, Senators David Norris and Michael McDowell; Níl, Senators Seán Kyne and Lisa Chambers.
Amendment declared lost.
Section 1 agreed to.
SECTION 2

I move amendment No. 2:

In page 12, between lines 7 and 8, to insert the following:

“ “academic member” means a member of An tÚdarás who, at the time of his appointment as such member, held an academic post;

“academic post” means a post in an institution of higher education (other than a post as chief officer) all or part of the duties of the holder of which is to teach any students of the institution or to carry out research;”.

I think the amendment should refer to "his or her appointment" rather than "his appointment." This is a matter of definition. It is perfectly obvious that academics are the people who know the situation from the inside so they are the best qualified people to hold this position.

I support this amendment from Senator Norris. It is very useful in that it is providing a definition in the Act of an academic member. It is important we be very clear there are academics who are manifestly part of an t-údarás, who are academics doing the work of academics - teaching or carrying out research - and who have held such posts at the time of their appointment. It is a useful clarification. We will come later to some of the further substantive amendments in respect of the constitution of the board and the level to which academics, students, staff and unions are properly represented either on the board of an t-údarás or on the boards of institutions of higher education. However, this definition is useful and makes all of our subsequent amendments much clearer. I commend the amendment.

I thank the Senators. As Senator Higgins rightly points out, this amendment needs to be seen in the context of more substantive amendments that come up later in the Bill in respect of the constitution and composition of the board of an t-údarás. I believe these new definitions are not necessary as it is not specified in respect of the membership of the board of an t-údarás whether a member is an academic member. The board is a competency-based board and the competencies required are set out in section 16(2)(a). It is not a requirement to hold an academic post to be a member of an t-údarás. I think that is probably an area where we have a disagreement that comes up later in the Bill. Considering we intend for the HEA board to be a competency-based board and not to define its membership as an academic or trade union member or the likes, I therefore do not see why I would define "academic member" in section 2.

The Minister is correct in saying the significance of this amendment must be seen in the context of proposals to amend section 16. At the moment, section 16 says:

The Board shall consist of the following members:

(a) a chairperson;

(b) 11 ordinary members.

It goes on to say:

...the chairperson and the ordinary members of the Board shall be appointed by the Minister from among persons who, in the opinion of the Minister, have sufficient experience and expertise relating to—

(i) matters connected with the functions of an tÚdarás to enable them to make a substantial contribution to the effective and efficient performance of those functions.

I will stop there to say that seems to indicate people connected with and who have worked for or are retired from the HEA are in contemplation there. The second category of people who are eligible are persons having "sufficient experience and expertise relating to ... matters connected to education, teaching and learning, research, the promotion and use of the Irish language, organisational and financial governance, management, public administration or risk management". That is all very well but the Minister's power under section 16(2)(a) is to select 11 ordinary members from those categories, which include for instance public administration, management and financial governance. People who qualify on that ground are eligible to be appointed by the Minister but there is no obligation to appoint anybody who has, for instance, experience as an academic of how a university or other higher education institution operates.

The point is this legislation gives to the Minister the power to determine effectively who is on the board of an t-údarás and who is not. There is also one other category I forgot to mention, namely, somebody who is "a student or a full-time officer of a national student union". How many students are there at any given time? Perhaps 100,000. There is to be a person who is there qua student, not a person who is there by reason of being in a student representative body or anything of that kind. Therefore, there is massive flexibility there.

What Senator Norris's amendments are attempting to achieve, in the round, is that the Minister is not to be left with this unfettered discretion to compose this board of whoever he or she likes. This House spent a long time, and I take some blame for it, considering the terms of the judicial appointments commission-----

Just some of the blame.

I was glad of the support I got in that debate from Senator Ó Donnghaile and others but I make the point-----

He has allocated some blame there.

I am sharing it out. For a lot of these very important institutions of State we are putting in place now, other legislation guarantees a balance within the composition of those bodies. It might stipulate not less than one person who shall have this experience, or one person who has that experience or, in the case of the judicial appointments legislation brought before this House the last time, people who had actually been vetted by the Public Appointments Service as to their suitability. That was on an openness basis. People could apply to be considered for appointment to these bodies but what we are doing here is giving the Minister almost limitless discretion as to who ends up on the board of an t-údarás. It goes on to say at least there will be at least 40% of each gender but there is nothing there to guarantee particular insights or experience as a prerequisite for appointment to the board.

The absence of those criteria means the Minister of the day will have power to make discretionary appointments to the board in a way that is not consonant with what has been happening with other semi-State bodies where legislation has tended to require that of the ten, 11, 12 or however many places it may be, two people will come from this category and two from that category or whatever. That has been the trend in public legislation and now we have a situation where we are reversing that trend and granting to the Minister effectively limitless discretion as to who he or she appoints to the board. That is what Senator Norris's amendment is aiming to tie down so at the very least some obeisance should be made to the proposition that the Higher Education Authority, which has such a significant influence over higher education in Ireland, should have among its membership people who are academic persons who have experience of the academic life. They must at a minimum be represented by some appointments to the board.

The alternative is to proceed with the section as it is and it might be that everybody would be either experienced in how t-údarás used to work or skilled in relation to the Irish language, organisational and financial governance, management, public administration or risk management. These things are so vague and there is not a guaranteed minimum quota for any of them in the composition of the board. I strongly support Senator Norris's amendment.

I, too, support Senator Norris in this. With the appointments in this Bill generally there is an exclusion first and foremost of members of local authorities. When I look at this particular section I wonder how the Irish Federation of University Teachers, IFUT, and the Teachers Union of Ireland, TUI, which are the two trade unions representing third level staff, feel about students being given a priority here and trade unions being ignored in this section, from what I can see. Maybe I am wrong and have misread it but it looks like a student can be appointed but there is no provision here to appoint members of either of the trade unions that represent the teaching staff in these colleges. I am interested in what the Minister has to say on that. Maybe I have misread it.

The current provision with regard to the authority is that essentially, the Minister, in his discretion, makes all the necessary appointments.

That is about 50 years old.

I appreciate that, although there are colleagues of Senator McDowell who say we should not be changing things that are 50 years, or 400 years, old, but I agree on the need for some of the changes.

I would love to know what is 400 years old that we think should not be changed. Does the Senator mean the statute for fraud or something?

Senator Byrne, without interruption.

I refer Senator Mullen to Senator Norris's earlier contribution. When the authority was established in 1971, the legislation effectively gave the Minister the power to make the appointments to the authority at the time. In fact there is no provision with specific regard to student representation. Part of the reason I know this is I was education officer with the USI in the year we achieved it. By the way, the Minister who made the first student appointment to the HEA was Micheál Martin. The tradition has been kept up ever since but that is done by discretion rather than by legislation, so adding this into the legislation is certainly welcome.

Senator McDowell is slightly wrong in saying the Minister can pick almost anybody.

Section 16(2) states that the individual shall have to have "sufficient experience and expertise relating to" a number of categories, which are laid out quite-----

(Interruptions).

Senator Byrne should be allowed to speak without interruption.

It is unusual that a number of Members on the Independent benches, who insist we do not guillotine legislation yet who constantly seem to wish to interrupt when anyone else wishes to speak, are interrupting. It is only a pity, given they are in the consultation process, that they did not engage as extensively as the Minister has done over the past four years. I would like to know, and we will soon find out on the record, the extent to which Senator Craughwell made representations during that time.

What is key about the authority - and this is where I have some sympathy with the proposers of the amendment - and what has to be remembered is that this is not a representative board. The idea is that the student who is on the board is not there solely as a student representative nor if somebody from an academic background is put on the board, is he or she an academic representative. They are there because of the skills and experience they have to contribute to the body corporate. In the same way, with the boards of most organisations, members should leave their representative hats at the door and seek to fulfil the objectives laid out within the legislation.

That said, and as the Minister will be aware, I have proposed an amendment relating to this matter later in the Bill. In that amendment I state specifically that, tied in with this, there should be experience of international higher education, particularly given the space within which the authority and the universities should operate. I, therefore, have some sympathy with the proposers of this amendment. It is quite clear, and the requirement is there, that the appointee shall have sufficient experience and expertise relating to matters connected to education, teaching, learning, research and so on. I do not necessarily expect the Minister to appoint a farmer simply because he or she happens to be a supporter of the Minister. Whoever is involved will have to show that he or she fulfils the necessary criteria and has, as according to the legislation, sufficient experience and expertise. There is merit in having a student voice on the board but, equally, other members should be able to guarantee some level of expertise in that regard and of higher education. The question is how we ensure that this is a representative board while, at the same time, ensuring that the necessary experience and competences be available for an túdarás to fulfil its objectives and that these can be formed from the composition of the board.

I may table an amendment on Report Stage in respect of the definition relating to the academic member to address the gender issue Senator Norris highlighted. The Minister's response indicates that we do not necessarily need people with academic experience on the board. An t-údarás is given extraordinary powers. With respect to Senator Malcolm Byrne, the Minister mentioned that there was previously discretion, but this Bill centralises extraordinary powers in an t-údarás. There is a shift. There is a lot less discretion at the level of individual institutions of higher education as a result of this Bill. There are also extraordinary powers given to an t-údarás. In that regard, it is a concern if, effectively, the Minister has full discretion as to who makes up the membership of the board of an túdarás. It is poor practice. The Minister mentioned that the members will have proved themselves; they will not have to have proved themselves to anybody expect the Minister. His or her judgment and opinion are considered the test. We have mechanisms available in this State such as the Public Appointments Service, PAS, whereby we can determine whether people have appropriate skills, but those mechanisms are not being used in this case. To be clear, the provisions under section 16(2) are filled with the word "or" such that the experience and expertise may be related to any one of a number of areas. For example, it could well be that all the members have experience of management or public administration and none has experience of academic matters, and the core function of an t-údarás relates to academic institutions. It is an incredibly important and a specific role. I point to best practice even in other legislation, or certainly improving practice in other legislation. For example, in the case of climate legislation, in the appointments to the Climate Change Advisory Council there was learning from the fact that undue discretion was not sufficient. Because the previous council had quite an unbalanced number of economists and lacked academic and scientific expertise, provision was made in the new climate legislation to require a balance on it between the sets of skills set out. In the legislation as set out in section 16(2) and, indeed, in the Minister's reply, we have not had any indication or guarantee that there will be academic representation on the board of an t-údarás. That is the current stance and it is a matter of significant concern.

This is just a tangential and light-hearted comment. Where I come from, the word "academic" is often used to indicate that something is completely irrelevant and has no practical function.

The Senator's point is academic.

I will let the tangential point stand. I thank Senator Norris and thank the other Senators for their contributions.

The amendment relates to the definition in respect of the academic member of the board. As I suggested in my earlier comments, Members felt the need, understandably, to wander to other sections to have a more holistic conversation; I get that. The amendment relates to whether we should define "academic member" in the legislation. Considering that the Bill being put forward by the Government establishes a competency-based board that does not distinguish on the basis of academic or non-academic experience and expertise, I am not in a position to define "academic member" in the Bill. Senators can disagree with that position but they will understand that that is the logic in my not being in a position to accept the amendment.

The powers invested in the Minister are not new. The Minister of the day already appoints the board of an t-údarás. I go back to our pre-legislative scrutiny and the significant time some Members of this House, some Members of the other House, stakeholders and others spent at committee meetings and the like. We have tried in this legislation to do something that was not done in the 1971 Act but is done in this Bill, that is, to begin to detail what certain competencies might look like. To give one example, Deputy Ó Snodaigh, to whom I openly give credit for this, was of the view that we needed to be clearer in respect of the Irish language. We made an amendment on Committee Stage to spell that out. We can debate whether we have got it right or got it wrong, but I want Senators to understand the process we have gone through. As for section 16(2)(a)(ii), we are endeavouring to do something the 1971 Act did not do, which is, rather than granting unfettered power, to begin to outline the competency set a Minister shall consider.

I will make a point that I think is fair. Anybody in politics longer than a week understands that appointments to boards by Ministers are heavily scrutinised, and rightly so. I could give the House many examples of board appointments and other appointments that have not gone very well. We all know about them. Anybody who suggests that board appointments are not scrutinised within an inch of their lives on the floors of this House and of the other House, in the national media, quite rightly, and in Oireachtas committees, is being slightly, if not accidentally, disingenuous. The PAS is used by the Government for the appointment of people to State agencies and has been used for the HEA board. We have been extremely fortunate with the calibre of people we have attracted to the HEA board. This is not intentional, but I am very proud of that and I strongly reject any negative assertion about what I call the USI seat, that is, the student representative seat, on the HEA board. We have had a proud tradition, started by the current Taoiseach, of USI presidents generally representing people on the board. I am sorry; I should have referred to Senator Hoey. She was that person on the HEA board. That has worked really well. All we are doing now is spelling out that long-standing practice and precedent in legislation, which seems like an appropriate thing to do.

We are also doing something which I believe was referred to by Senator McDowell - and I am probably disappointed that there has not been more reference to it - which is to spell out the importance of trying to get a gender balance on the board of the Higher Education Authority, with a specific reference to 40%.

When people ask about this group or that group, I ask about gender equality, which is spelled out very clearly in this Bill.

There is a little bit in some of the comments, and I am going to just call it out, of wanting to diminish the Minister's role, whoever he or she is. There is a great amount of talk about autonomy, freedom and all of this, but what about democracy as well? I got elected, received a seal of office from the President of Ireland, and I am appointed to serve in Cabinet. There is a role for the Minister and for a Government Department and we should not be shy nor are we going to in any way suggest that the Minister exercising that role or function is anyway dirty or inappropriate.

There is also a reason to prevent overreach.

Progress reported, Committee to sit again.
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