Select Committee on Social Affairs díospóireacht -
Wednesday, 2 Nov 1994

Business of Select Committee.

Chairman

The first item concerns the Committee on Social Affairs and Employment of the European Parliament, which is holding its annual meeting with representatives from corresponding committees from national parliaments in Brussels on 29-30 November 1994. The theme for the discussion is the employment situation in Europe. It will focus especially on the situation and policies at national level and on the possibilities for common action within the EU. The chairman of the committee has invited me as Chairman of this Committee to attend. Is that agreed? Agreed.

The Committee has also received an invitation from the WHO, which is holding a conference on European health policy and opportunities for the future in Copenhagen from 5-9 December 1994. The organisation is hoping to establish closer links with parliamentarians in Europe, and especially with parliamentary committees dealing with health issues. I suggest that the two Convenors and myself as Chairman should attend, accompanied by the Clerk. Is that agreed? Agreed.

The Bills before the Committee address a number of issues regarding the appointment of Government bodies to the regional technical colleges and to the Dublin Institute of Technology. Under section 2 of both Bills, the provisions of section 6 (4) of the Regional Technical Colleges Act, 1992, and of the Dublin Institute of Technology Act, 1992, are amended with regard to participation in elections for governing bodies, gender balance on governing bodies and method of selection of student members of governing bodies.

The Bills also provide for a situation where a vocational education committee does not comply with its statutory obligations to ensure gender balance. In such a case the Minister, after giving the vocational education committee an opportunity to remedy the situation, may appoint a body of persons as she sees fit to fulfil the role of governing bodies for up to one year. Provision is also made that where a member of the governing body who was elected by staff to that position ceases to be a member of the staff of a college or institute, he or she shall automatically cease to be a member of the governing body.

Section 5 of both Bills addresses a difficulty which arose from the striking down by the High Court of regulations made last year by outgoing governing bodies. This section would allow the Minister, in the exceptional circumstances where an outgoing body failed to make the regulations necessary for its replacement, to appoint an incomplete governing body which could then make appropriate regulations.

Amendments have been tabled by the Minister for Education and by Deputy McGrath and Deputy Gilmore. I propose that we first consider Committee Stage of the Regional Technical Colleges (Amendment) Bill, 1994. Is that agreed? Agreed.

Mr. McGrath

I am somewhat concerned at the haste with which the committee is addressing Committee Stage of these Bills today. With regard to the Dublin Institute of Technology (Amendment) Bill, 1994, retrospection has been built into a number of sections. In this respect, section 2 (4) backdates a provision of the Bill to 1 April 1994. There is a case before the High Court, due for mention next week under reference Case No. 208 JR 1994, T. Grennan and Ms Marie Keating versus Dublin Institute of Technology and the Minister for Education. As this case is before the courts, it may preclude discussion by the Committee on this section of the Bill.

May I ask, Chairman, if you have received any independent legal advice regarding this case, and if not, is it possible for the Committee to have access to such advice? Is it possible that Members of the Committee will be sub judicewhen considering the section and therefore prevented from discussing it? In this respect, the issue of access to legal advice by committees was discussed with Senator Magner some time ago. I am also concerned with other aspects of these Bills, especially the hasty way in which the Committee is proceeding; but I ask you, Chairman, to first address the matters I have raised?

Chairman

I have not received any legal advice. The role of the Committee is to legislate. The courts have a different function, which is to interpret our legislation. I therefore do not see any difficulty with the Committee proceeding to legislate.

Mr. McGrath

It is the retrospective nature of some aspects of the legislation which I am addressing.

Chairman

The Committee is in session to legislate and we should not be influenced by what may happen. Our function is to legislate and it is the job of the courts to interpret such legislation.

Mr. Gilmore

I am somewhat surprised that legal advice has not been obtained on this issue. On Second Stage I raised the question of this case which is before the High Court. Whether or not this issue is sub judice, as I understand it the issue which is before the High Court has to do with the core of this Bill, which is about whether arrangements should be made for equal numbers of men and women to be elected by the staff of particular colleges. As it happens, my views on this may not necessarily be shared by the people who have taken this case to the court.

This poses a number of difficulties. First, can we deal with an issue while it is sub judice? Secondly, is it in order for the Bill which is before us to make provisions which, it has been suggested, are seeking to circumvent whatever the court may decide? Thirdly, where does it leave us in relation to the issues which are before the court? For example, on the question of equal numbers of men and women to be elected by representatives of staff, in the college in question there are two groups of staff. One group, who are members of the Teachers’ Union of Ireland, have one view and the other group, from whom the plaintiffs in this action are drawn, have a different view.

Will the Committee be permitted to discuss frankly the issues which are involved here? This concerns the Dublin Institute of Technology, which is dealt with in a separate Bill. When we come to discuss the section dealing with the election of academic staff, can we express opinions here as to how the academic staff should be elected to the governing body in that college when that issue is before the High Court at present?

I am happy to express my opinion on it. However, on any previous occasion, in either the House or any of its committees, when I have peered over the parapet to express anything remotely like an opinion on something which was before the courts I was shot down. It would certainly establish a very helpful precedent if we were permitted to discuss this matter and if it is not considered to be sub judice.

Minister for Education (Ms Bhreathnach)

As the matter was raised on Second Stage, I sought preliminary advice from the Attorney General's Office. I was assured that there is no interference with the courts. We are not discussing the particular case. The issue was raised, I asked the question and was told that it would not be seen as an attempt to interfere with the judicial process. We can guarantee this in the obvious way on Report Stage. I am sharing with you now the advice I received, which you asked me to seek.

Mr. McGrath

This point was raised by myself and Deputy Gilmore on Second Stage and there was no response to it then. Did the Minister get a written legal opinion from the Attorney General in relation to this? If so, I think that it should be circulated to us. As Deputy Gilmore said, it will create quite an important precedent in this House if we can discuss items which are before the courts. It would be a benchmark decision if you, Chairman, allowed this decision. You will go down in history as the Chairman who did so — for all the right reasons, I hope.

I would like to see a copy of that legal opinion. If we cannot see it, I would like you to address the question of independent legal advice. It keeps coming up at committees. It was discussed by the Joint Committee some time ago. Senator Magner indicated that he was working on providing something in that field. Is it possible for us to get a copy of the advice given and, if not, could we seek legal advice?

Ms Bhreathnach

This was brought up in the House. I asked for advice from the Attorney General's Office. That was the advice which we received. I repeat that we are not discussing the particular case. That is all that I have to say. I have been assured and I have taken the advice which you asked me to seek.

Mr. McGrath

We accept the Minister's word on that, but I hope that she will furnish us with the legal opinion.

The second point related to the regional technical college's (Amendment) Bill, 1994. We are rushing forward at a rate of knots in relation to introducing these amendments. One of the amendments was published this morning. It arises out of a report on Letterkenny regional technical college, which I believe was published on Friday. I got a copy of it on Tuesday. It is quite a substantial report with many findings and recommendations in relation to what has happened in Letterkenny regional technical college.

The Minister seems to be moving at a tremendous pace at the moment. She received the report at the end of July. She published the Regional Technical Colleges (Amendment) Bill and the Dublin Institute of Technology (Amendment) Bill on 23 September. She published the report last Friday and mentioned in her press release on Friday that she will be entering into long discussions with the interested parties in relation to the report and what needs to be done arising from it. Yet two or three days later she is introducing legislation with far reaching consequences before we have had a chance to look at the report and discuss it with other interested bodies around the country. We are proceeding with undue haste. There are very important issues in that report which need reflection, consideration and deliberation.

We all regret some of the things which happened in Letterkenny. However, let us not forget that many good things also happened in Letterkenny. We do not want to race in with a sledge hammer without recognising that there are many good people and good departments there and that much good work has gone on in Letterkenny. We also do not want to taint all of the other colleges around the country, the majority of which have an excellent record in the work they continue to do.

I am concerned that we are racing in. The amendments have been published very late without proper consultation. We should postpone deliberation on all of these amendments, at least for a couple of weeks, until we have had a good chance to read the report properly and discuss it with the other interested parties.

Chairman

Deputy Gilmore on the question of the timetable.

Mr. Gilmore

I was signalling to you in relation to the earlier matter we were discussing. In relation to that matter, I raised the concern about the sub judicenature of the issue which is before the courts. I am very pleased that the Minister has got legal advice and that she is satisfied that that advice enables us to discuss this issue. It establishes a very helpful precedent in relation to what can be discussed by the Committee. I am very pleased about that. Although the Minister said that we are not discussing the particular case, we are discussing the issue central to the case. I do not know whether that amounts to discussing the case, but the issues involved are central to what we will be discussing here and it is not possible to avoid it. I am pleased to note that the Minister has restored confidence in the advice of the Attorney General. I hope that it will stand the test of time and that we will not have any difficulties with it in future cases.

I want to raise an issue relating to the amendment which is designed to deal with the Letterkenny situation. It would not be wise to defer dealing with it. I ask the Minister to explain why this is happening so late. Dr. Hederman O'Brien made her report to the Minister in July. It was published last Friday and we have the amendment today. Presumably the Minister knew that she was introducing amending legislation dealing with the regional technical colleges while she had this report.

A second precedent was established today when the Minister got the permission of the House to introduce this amendment which would normally be outside the scope of the Bill. I ask the Minister to explain why, given that she has had this report since last July and allowing for the normal break for holidays, this provision was not included in the Bill when originally published? The Bill was published on 23 September. Why was some provision not made on Second Stage? Why was the report not published earlier? This would have allowed for a longer lead in to this issue. I accept that the issues raised in the report are urgent and require attention. We will go into the detail of the matter when we debate the amendment.

The Minister owes us an explanation. She had the report in July, published it last Friday, published a Bill on 23 September which did not include any provision arising from the report and then had to take the unusual step today of going to the House to get approval to introduce this amendment at the Committee.

Ms Bhreathnach

I share Deputy Gilmore's concern that we would not delay. Last March I appointed the governing bodies for a year. At that stage Dr. Miriam Hederman O'Brien was compiling the inspector's report sought under the Principal Act following the concern expressed about events in a particular college. The report was not available to me until July. Since July it had to considered by officials and was the subject of legal advice. In the interests of natural justice the chairman and director of the college, who were discussed in the inspector's report, were given equal time to consider the report and respond to us. There has been a response.

Deputy McGrath asked that we leave it for a number of weeks. I was very conscious of the new students who entered the college in September. I indicated last March that I would introduce the regional technical college and Dublin Institute of Technology legislation but I did not have the inspector's report at that time. It arrived in July and its findings and recommendations were duly considered. A lengthy press statement was issued with the report to cover concerns expressed both inside and outside the House about the college.

There is a sense of urgency here. I am not confident that the problems of the college can be adequately dealt with under the situation pertaining there today. We owe it to the college and this exciting, new sector to put some mechanisms in place. This could only be done following the receipt of an inspector's report sought under the Principal Act. These mechanisms should ensure that when systems no longer hold the confidence of the Minister or her Department, this can be addressed while due process can be pursued by those involved or discussed in the report.

We owe it to the new students in the college and the existing student body to act on the findings of the inspector's report and put in place a mechanism to ensure that the college is running competently. We owe that to the interests of the students, their parents and the taxpayer.

The timing is coincidental. As the Chairman said at the outset, I am here to deal with the larger issue of gender and staff elections. However, I suggested that we use this opportunity to introduce amending legislation because of the urgency of the situation and I got the support of the Government.

The gender issue is progressing at an orderly pace. I appointed the boards last March for a period of one year rather than five. In the meantime this report was made available to me in July. I apologise to Deputy McGrath about his receipt of it on Tuesday. I took care to ensure that everybody had the report available to them on Friday.

Dr. McDaid

The amendments arise as a result of events in a regional technical college in my constituency, indeed in my own town. The chairman has been vilified, particularly in the newspapers. If the chairman had been responsible for all the misgivings about the college, as the newspapers have pointed out, his resignation alone should have been sufficient. Unfortunately, that is not the case and the Minister has, quite rightly, had to proceed further on this matter.

As Deputy Gilmore said, it is a pity that we are discussing these amendments at this stage. Much more could have been said on Second Stage if we had the amendments then. The matter has been totally one sided. Following the report by Dr. Hederman O'Brien, a number of questions remain unanswered.

I ask the Chairman to allow me read a statement from the chairman of the board. The debate has been totally against this individual. My concern is that we will not get a chance to set the record straight on events in Letterkenny. I agree with the Minister and she is right to proceed with this matter. Unfortunately, there are other issues involved, including the aspersions cast on individual members of the board as a result of the amendments, which are pointed directly at Letterkenny.

The Minister has stated that it is not just Letterkenny but regional technical colleges in general that she wants to manage. However, I ask the Chairman if I could be permitted to read a statement to the committee which would balance this matter. I was denied this on Second Stage.

Chairman

We are dealing with Committee Stage of the Bill and it would be out of order to entertain statements of that nature. There may be points in the statement which are relevant to the amendments which can be dealt with when we deal with the amendments and sections of the Bill. However, it would be out of order to use Committee Stage of a Bill for that purpose.

Dr. McDaid

Could the statement be circulated to Members on Report and Final Stages and read into the Official Report?

Chairman

The committee sends the Bill to the Dáil on completion of Committee Stage.

Dr. McDaid

The report is excellent but the readings from it tend to veer in one direction. There are relevant questions in the report which have not been answered. Where can I ask these questions if not in this House?

Chairman

The committee is dealing with Committee Stage of this Bill and any questions relevant to sections or amendments are in order. However, the Deputy has asked for permission to read a statement and that would be completely out of order on Committee Stage.

Dr. McDaid

The Assistant Secretary, in the Department's submission, states:

As a chairman of the governing body of a college, you occupy a special role in its overall management and control. As such, you must share the responsibility for any general failures of management identified in this report.

However, when somebody becomes involved and tries to rectify general failures the Assistant Secretary, in another part of the report, refers to "your over-involvement in management affairs". Surely the Assistant Secretary of the Department contradicts himself in this regard?

Chairman

The Deputy will realise that I have allowed him a degree of latitude, perhaps more than I should.

Dr. McDaid

I appreciate that.

Chairman

The Deputy made his point. However, this committee cannot deal with that matter. We must deal with Committee Stage of the Bill and report back to the Dáil. Before I call Deputy Keogh, I remind the Members that we cannot conduct Second Stage again so Members should confine their contributions to those suitable for Committee Stage.

Ms Keogh

I appreciate that but we are discussing an important matter. Colleagues have already referred to the precedent established in relation to the legal advice accepted by the Minister. When a precedent is set it behoves the relevant Minister to give Members an opportunity to see the legal advice. Committees should have independent legal advice, particularly when something contentious arises.

However, the more important point relates to the introduction on Committee Stage of what is, in effect, another half of the Bill. I understand the Minister's desire to deal with the difficulty but I do not like the establishment of the precedent — which may have occurred previously although I have not encountered it — whereby special permission is received from the Dáil for amendments on Committee Stage when there has been no reference to the issue on Second Stage. There should have been an opportunity to deal with this by debating it thoroughly on Second Stage. It is not good enough to read in the newspapers about an amendment that will be put on Committee Stage when Members of the Opposition have not received a copy of that amendment.

Although I am not anxious to delay proceedings in relation to what might be termed the Letterkenny regional technical college aspect of the Bill, I have grave reservations about the introduction of such a wide-ranging amendment to a Bill that was relatively straightforward and which I supported. This, however, is a totally new departure and I am most unhappy about it.

Chairman

Is the committee agreeable to completing Committee Stage of the Bill today?

Mr. McGrath

We have not resolved the matter being discussed at present. I understand the Minister's need for urgency. She rightly points to what is happening to the college and to the new intake of students. However, in fairness to Members of this House the Minister must acknowledge that the report was published on Friday. The amendments were published this morning and it is not in order that the Minister should ask Members to agree to them at such short notice without allowing ample opportunity for consultation and further discussion with the other people involved.

We are moving too quickly. I accept the Minister's comments about Letterkenny and I am familiar with the difficulties there. However, if we proceed too quickly and, perhaps, allow faulty legislation to be passed we will not be thanked. In view of that concern, I ask the Minister to change the timetable.

Mr. P. Gallagher (Laoighis-Offaly)

I understood that although this is an unusual procedure it was agreed to without debate this morning on the Order of Business. If that is so, it is not within the power of the Minister or you, as Chairman, to address those concerns. It is up to the party Whips. If this was agreed in the House this morning I do not think we can do anything about it now.

Mr. Gilmore

We could get involved in debating correct and incorrect procedures. Chairman, you asked about the timetable but the Minister has still not explained her timetable which has landed us in this situation. I raised the issue of Letterkenny during my contribution on Second Stage when I asked what had happened with regard to that matter. I was surprised — and I expressed that surprise — that the Minister did not refer to it during her speech and that there was no provision in this amending legislation to deal with issues that might have arisen from the report. I also asked about the publication of the report.

A report from the inspector was received by the Minister in July. Making allowances for leave, consultations with others about the report and allowing those with whom the report was concerned an opportunity to respond to issues raised, I cannot understand the logic in the timetable for the two Bills. The Regional Technical Colleges (Amendment) Bill was published on 23 September. I cannot understand why the Minister, having had the report since July, could not have anticipated at that stage the need for additional legislative measures. She waited until she received replies from the chairman and director of the college and then incorporated it in the Bill. Long standing Members of the House know if this ever happened before but I am not aware of any case where the scope of a Bill was extended as it was this morning. We now have an issue under consideration at this committee which was not the subject of discussion on Second Stage. If we are to discuss it, the Chairman must be more flexible than he would normally be on Committee Stage in allowing Members to say——

Chairman

I have been very flexible up to now.

Mr. Gilmore

——what they wish about it. Deputy Gallagher's point is that it was agreed without debate. If we are to play that game, there is a solution the next time something arises for agreement without debate.

Mr. Gallagher (

Laoighis-Offaly): I was not playing any game. I simply pointed out a fact and that Members should perhaps be more vigilant about what each of the Whips are doing.

Chairman

A similar situation arose on the Social Welfare Bill last year. It is not without precedent, at least as far as this committee is concerned. I can only speak for this committee. Will we proceed? I have been more than flexible in this discussion so far. We must get down to the business of the meeting. Can we agree a timetable? Do Members agree to sit late tonight?

Mr. Bell

I have consulted Deputy Bradford. I asked him to take note that the Minister is available tomorrow. We could have a full day's discussion tomorrow, commencing as early as the Chairman wishes. Otherwise, we will have to sit next week and that will present a problem for both Opposition and Government parties due to the by-elections in Cork. I suggest that we proceed to 5 p.m., see where we are at that point and decide to reconvene in the morning.

Mr. Gilmore

I do not agree. It was one thing to get amendments thrown at us at short notice this morning. The committee needs a little more notice, rather than being told now that the committee will sit again tomorrow.

Chairman

It was on the agenda as circulated to Members over a week ago that the committee would sit tomorrow; Thursday is included on the agenda. The notice sent to each Members stated that consideration of the Bills would resume at 11 a.m. on Thursday, 3 November 1994 if not previously concluded.

Mr. Bell

In case there might have been any delay, I rang every spokesperson. If I could not get him, I contacted the person responsible for the spokesperson or alternatively the office of the party concerned.

Mr. Gilmore

The Deputy spoke to me this morning.

Mr. Bell

I spoke to the Deputy's office last Wednesday.

Chairman

It was agreed and notified that the committee would sit at 11 a.m. on Thursday, 3 November if the business was not concluded. Does the committee want to sit late this evening after a break? Is that agreed? We will continue to 5 p.m.

Mr. J. Higgins

Is it intended to impose a guillotine at any stage? I presume, notwithstanding the Minister's desire to get this through, there will be no attempt to rush sections through. We are inserting a new part to the Bill which is being substantially recast. Nobody has any problem with the Bill as discussed on Second Stage and which is before us on Committee Stage. The problem arises in that we are now materially and substantially changing the Bill and giving it a new focus and definition. There is nothing worse than rushing legislation. We have seen the consequences of that. Notwithstanding the Minister's anxiety, it is vitally important that we get it right. The important focus is the commission put in place now to take over in emergencies. We hope it will be watertight and that it will stand the test of time. If it means stretching the debate for another two or three weeks, so be it.

Chairman

The committee members can take all the time they wish once they remain in order on the various amendments and sections. There is a suggestion that the committee sits late this evening, resumes at 11 a.m. in the morning and sits all day tomorrow if necessary. Is that agreed? Agreed. We will continue until 5 p.m. and then decide what time to resume this evening.

Mr. Blaney

I am neither a member of the committee or a substitute but I wish to presume on the committee's time. I have extensive knowledge of the college in Letterkenny. I was chairman of the board for 11 years and a member of the board for a number of years also. I saw it grow from little or nothing, with little help from the Department of Education which did not want a college there. As it succeeded against all the odds, there was the unnecessary and uncalled for colleges Act. However, far beyond the report of the inspector whom the Minister appointed, there is much more to be considered which was not dealt with or sought to be dealt with in the report.

Given the resignation of the chairman, it would be better for all concerned and the future of all the colleges if that gap was filled for the moment. This should be done to alleviate the immediate problem in Letterkenny and more time should be given to see whether the various omissions can be properly dealt with in the colleges Act for the benefit of all. We should not proceed to try to do it now in the haste with which it must be done if the current agenda is to be followed. We are going the wrong way about this. Even if everything that is proposed is done, there will still be much to be done when the total fallout emerges, not only in this college but in other colleges also. We need a complete examination of the control of colleges.

Regional Technical Colleges (Amendment) Bill, 1994: Committee Stage.