Oireachtas Joint and Select Committees
Thursday, 18 October 2018
Public Accounts Committee
HEA Financial Statements 2017
We are joined again by the Comptroller and Auditor General, Mr. Seamus McCarthy, who is a permanent witness to the committee and Ms Colette Drinan, deputy director of audit at the Office of the Comptroller and Auditor General. We are meeting representatives from the Department of Education and Skills and the Higher Education Authority, HEA, to discuss the Higher Education Authority's financial statements for 2017 and governance arrangements in the Department of Education and Skills and the HEA for the third level sector. The committee has been giving much consideration to matters in the third level sector in the past two years and in July last year published its report on the examination of financial statements in the sector. A key recommendation made in the report was that the committee was of the view that the balance between the Department and the HEA in the financial and governance oversight of the third level sector might need to be reviewed and updated. The committee is of the opinion that the HEA has a key role to play in ensuring the important issues raised in the report will be addressed by each institution.
The committee is also of the opinion that the HEA needs to be empowered and resourced to carry out a greater oversight role effectively.
Dr. Graham Love has been chief executive of the HEA for the past two years and is due to leave the organisation this month. The committee felt it was important to engage with him and the Department prior to his stepping down from the role. While there have been newspapers reports on his resignation and the committee did receive a copy of his resignation letter, our engagement today is not about the personal circumstances of his resignation but, rather, about ascertaining, as per the committee's recommendations on its work, the level of progress made towards the empowerment and resourcing of the HEA to ensure it will have greater oversight of the third level sector. Accordingly, I ask members to keep the focus on the changes to the HEA and the Department's oversight of third level institutions.
We are joined from the Department of Education and Skills by Mr. Seán Ó Foghlú, Secretary General; Mr. William Beausang, assistant secretary; Mr. Tom Gaynor, principal officer, and Ms Stephanie Good, assistant principal officer; and from the Higher Education Authority by Mr. Michael Horgan, chairman; Dr. Graham Love, chief executive; Mr. Neil McDermott, assistant principal officer; Ms Sheena Duffy, assistant principal officer; and Mr. Stewart Roche, management accountant.
I remind members, witnesses and those in the Visitors Gallery to turn off all mobile phones or switch them to airplane mode. Switching them to silent mode is not sufficient because they can still interfere with the broadcasting and recording systems.
By virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of their evidence to the committee. If witnesses are directed by it to cease giving evidence on a particular matter and continue to do so, they are entitled thereafter only to qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person or entity, by name or in such a way as to make him, her or it identifiable.
Members are reminded of the provisions within Standing Order 186 that the committee shall refrain from inquiring into the merits of a policy or policies of the Government or a Minister of the Government or the merits of the objectives of such policy or policies.
While we expect witnesses to answer questions put to them by the committee clearly and with candour, they can and should expect to be treated fairly and with respect and consideration at all times in accordance with the witness protocol.
I invite the Comptroller and Auditor General to make his opening statement.
Mr. Seamus McCarthy:
The Higher Education Authority is the statutory planning and policy development body for higher education and research in Ireland. It is the primary funding authority for the universities, institutes of technology, teacher training colleges and a number of other designated education bodies. Over 90% of its income comes directly from Vote 26 - Education and Skills, with the balance consisting largely of research funding from Vote 32 - Business, Enterprise and Innovation. It had gross expenditure of €1.17 billion in 2017. As shown in the graph, the bulk of that expenditure was in the form of grants to education bodies for specified purposes, either current spending, including fee recoupment to colleges, or capital project funding and research funding. I issued a clear audit opinion on the HEA's 2017 financial statements.
Dr. Graham Love:
I am joined by the chairman of the HEA, Mr. Michael Horgan, and my colleagues, Ms Sheena Duffy and Mr. Neil McDermott from the system funding and governance sections and Mr. Stewart Roche, our management accountant.
The HEA's accounts for 2017 were presented recently to the committee. They were certified by the Comptroller and Auditor General at the end of June. I am pleased to note that once again they have been certified, with no issues arising.
In 2017 the HEA allocated over €1 billion in funding to the higher education sector. The funding covers the traditional core grant to institutions but also targeted initiatives such as Springboard which provides free places on courses for the unemployed and people returning to education and the Irish Research Council that acts as the key national funder of basic research across all disciplines. This allocation of funding is a significant responsibility for the HEA but one that it performs effectively.
I would like to update the committee on other developments since we last appeared before it in May. In May I briefed it on the status of the report arising from the independent review of the spin-out and sale of companies from Telecommunications Software and Systems Group, TSSG, at Waterford Institute of Technology and the reasons it had not been published. I assure the committee that the HEA and the Department of Education and Skills are working together to progress the matter as soon as possible and I am happy to brief it in further detail today.
In November 2017 the HEA published Dr. Richard Thorn’s report on the University of Limerick. The report made 36 findings and ten recommendations to be implemented by the university. The HEA continues its monitoring of the university's implementation of the recommendations arising from the report. Eight of the ten recommendations have been implemented and the remaining two are on course for completion by the end of the year.
At the meeting in May I also briefed the committee on the HEA's rolling governance reviews. Our first such review dealt with procurement and our second, intellectual property policies. This year's rolling review will focus on employee remuneration and other benefits. Like previous reviews, the rolling review is based on a sample range of universities, institutes of technology and other colleges. The institutions to be examined as part of the review have been notified and fieldwork will commence shortly.
Procurement, rightly, remains an area of focus for the committee. Our first rolling review in 2016 focused on procurement and led in part to the HEA's annual higher education procurement summit. This year's summit, held in April, saw the launch of a corporate procurement plan template to help higher education institutions to better plan their procurement requirements and ensure better compliance with national procurement guidelines. The plan has generated a lot of interest and there is a commitment by institutions to adopt the templates and complete the work to ensure and improve compliance in this area.
Earlier this year the Comptroller and Auditor General published his annual report on public sector financial reporting. I am pleased to note that there continues to be improvement in the timeliness of the production of financial statements for higher education institutions, particularly universities.
This year has seen not only the passing of the technological universities legislation but also our first technological university designation. In July the Government announced that the application for such status from the TU4Dublin consortium would be granted and it is on course to officially become a university next January. Other technological university consortia continue to make progress with their respective applications.
Next week the HEA will commence its annual round of strategic dialogue meetings with higher education institutions. At the meetings institutions will receive feedback from the HEA and a panel of external advisers on their mission-based performance compacts. The compacts set out each institution’s strategic priorities and contribution to overall system objectives.
As I finish up my role as chief executive, I acknowledge the work of HEA staff and their contribution in supporting and overseeing the development and growth of the higher education sector. I wish my successor, Mr. Paul O’Toole, the very best in taking up the role of interim chief executive. I am confident that he will bring a valuable insight and experience from his time in SOLAS.
My colleagues and I will be happy to answer queries from the committee.
Mr. Seán Ó Foghlú:
I thank the committee for the invitation to appear before it. To assist me in the discussion, I am joined by my colleagues, Mr. William Beausang and Mr Tony Gaynor.
The HEA’s 2017 financial statements were certified by the Office of the Comptroller and Auditor General on 29 June 2018 with a clear audit opinion. The HEA is the statutory funding body for the higher education sector. One of its core functions is the allocation of moneys provided by the Oireachtas for universities, institutes of technology and other designated institutions. In 2017 the HEA allocated over €1 billion of Exchequer funding to the higher education sector in the form of recurrent grants, access grants, capital grants and research grants.
The importance of good governance is a theme which can be clearly identified within the HEA's financial statements. In addition to the high standards of corporate governance within the authority, as evidenced by the financial statements, the HEA has also introduced a number of measures in recent years to further enhance its role in the governance and accountability of the higher education institutions within its remit. Measures that have been taken include the following: the introduction of a new governance framework for the higher education system in 2015, the purpose of which is to provide assurance of compliance with legislative and other requirements and more timely and responsive interventions to address issues arising.
The new governance framework also makes clear the central oversight role of the HEA in monitoring governance practice across the system.
A further measure that has been introduced is the reduced timelines for the submission of draft accounts for certification by the Comptroller and Auditor General and the submission of annual governance statements to the HEA. The HEA also meets quarterly with the Comptroller and Auditor General to discuss the status of his audits of the financial statements of higher education institutions and the identification of issues or difficulties arising.
In 2016 the HEA commenced the introduction of a programme of rolling reviews of governance matters. The first rolling review focused on procurement, which was followed by a review of intellectual property in higher education institutions. A further rolling review has commenced in 2018, focusing on staff remuneration and benefits in higher education institutions.
Another measure undertaken was the review of the allocation model for funding higher education institutions, undertaken by the HEA, which was published in January 2018. The review proposes a reformed funding model that would provide for greater transparency in how State investment in higher education is allocated. It would also provide for stronger and clearer links between national strategic priorities and the types of programme delivered in higher education institutions. In addition, the HEA ensures codes of practice are in place in respect of the institutes of technology and the universities. The updated code of governance for institutes of technology was published by the Technological Higher Education Association, THEA, in January 2018 and it is anticipated that the universities' code of practice will be completed shortly.
The Department of Education and Skills works closely with the HEA to strengthen governance arrangements and ensure a robust system of accountability in the sector. The HEA, as a body that acts under the aegis of the Department, is required to comply with the 2016 code of practice for governance of State bodies. The annual allocation letters from the Department to the HEA highlight the code’s requirements. Compliance with the code is one of the terms and conditions under which the Department funds the HEA. In accordance with the provisions of the 2016 code of practice for governance of State bodies, the Department has a performance delivery agreement with the HEA. It sets out the purpose and scope of the agreement and defines the roles of both organisations. The core activities and key services to be provided by the HEA are agreed and set out, together with how each service commitment is to be measured. The current agreement covers the period 1 January to 31 December 2018. The 2018 performance delivery agreement supports specific high level goals and objectives of the Department and the HEA and sets targets in line with the HEA's statement of strategy and work plan for 2018. It also defines the output and outcome indicators, on which the performance of the HEA will be measured. A number of review meetings are set out within the agreement to allow the Department to formally review the HEA’s progress towards the agreed key deliverables.
In addition to these meetings, the Department and the HEA meet more regularly than is provided for in the performance delivery agreement. There are regular meetings on specific issues and general themes such as funding or governance across the sector. As well as ensuring open channels of communication are maintained, these regular dialogues between the Department and the HEA facilitate a collaborative approach to managing issues presenting across the sector.
Another important element of the relationship between the HEA and the Department is the annual system performance report which sets out progress across the higher education sector against the agreed national policy objectives identified by the Minister. In addition, the financial accountability framework is an agreement to provide for proper and effective use of public funding, effective control audit and accountability measures and cost effective and efficient delivery of services. A corporate governance risk register and an early warning reporting system are also in place to enable the HEA to identify to the Department potential risks and allow for early intervention to address them.
During his time as chief executive of the HEA the Department has worked very closely and effectively with Dr. Love on a range of issues that include very significant reforms to the funding model for higher education, the institutional landscape and the governance framework between the HEA and the Department and between the HEA and higher education institutions. I publicly acknowledge the contribution Dr. Love and his colleagues in the HEA have made in the past 18 months in delivering these important reforms. I also wish him every success for the future.
I am conscious that the Department has been in correspondence in recent times with the Committee of Public Accounts on a number of issues particular to higher education. I assure the committee that the issues raised in the sector are taken very seriously by the Department. We are working with the institutions, through the HEA, to seek to have the issues dealt with appropriately and as efficiently as possible. I will be happy to provide an update for the committee on any of the issues raised.
Before concluding, I would like to highlight one issue, in particular. I understand the committee has inquired about the current position on the independent review of the spin-out and sale of companies from the Telecommunications Software and Systems Group at Waterford Institute of Technology. As members are aware, I am precluded from involvement in the matter and will defer to my departmental colleagues present to answer questions members may have in this regard. I will be happy to answer any other question for the committee.
I thank Mr. Ó Foghlú. We shall move on questions from members who have indicated in the following sequence: Deputies David Cullinane, Alan Kelly, Marc MacSharry, Catherine Murphy and Catherine Connolly. The opening speaker will have 20 minutes and the second, 15. Because this is an afternoon session I will stick to these times limits. Members will have a further opportunity to come back in. As members may have to get away, I want to give everyone an opportunity to speak.
I welcome Mr. Ó Foghlú and his team and Dr. Love and his team. Because it is his last appearance before the Committee of Public Accounts, I thank Dr. Love for his service with the HEA and engagement with the committee. He has been a very helpful witness on the number of occasions he has appeared before us. He has also been a staunch defender of the higher education sector. I commend him for the work he has done in that regard. I have some questions about his statement of resignation, to which I will come shortly.
I have some questions about the independent review of the spin-out companies at Waterford Institute of Technology. I hope Dr. Love shares or at least understands the frustration other members and I feel about this issue, given that we were due to receive a report last September or October. I met a lot of people who had engaged with Mr. Michael McLoone as part of the process. I also met him at his request and know that a lot of people came forward. I believe in due process and know that we cannot draw conclusions and must wait until the report is published. The committee has received a letter from the Teachers Union of Ireland, TUI, which was debated at our last hearing and in which it expressed concerns on behalf of its members who, in good faith, had engaged in the process. They feel aggrieved that one year on there is still no report, be it good, bad or indifferent.
Dr. Love briefed the committee in private session on some of the challenges. I do not want to put him in a position where it might be more difficult to publish the report, but does he understand the frustration of members and WIT staff? Perhaps he might outline for the committee - if he has the numbers - how many staff at WIT engaged with Mr. McLoone as part of the process. Was it dozens? When are we likely to see the report? One way or another, we need a resolution of the issue today. If Dr. Love is not in a position to answer the question, the Department needs to answer it. I am very anxious to ensure absolute clarity for everybody involved, including the management and staff at WIT. Everybody would benefit from having the report published as soon as possible. If Dr. Love is not in a position to answer the question, I will put it to the departmental officials.
Dr. Graham Love:
I thank the Deputy. I will take the three questions questions.
I share the frustration felt. There has been a lot of time spent on this issue. I make it clear that there has been a spotlight on it and the frustration is palpable on our side of the table also. It is our intention that a report will be published. This is a statement of principle and objective.
The Deputy asked how many people had engaged in the review process with Mr. McLoone. More than 50 came forward, more than we had expected at the time. We were surprised at the number.
The third question - probably the more important - was about the status of the report. It is almost one year on, which is intolerable and deeply frustrating for us. As I said in my earlier update, I must be careful in what I say, but I must give enough information to satisfy the committee. We have run into very significant legal challenges or problems with the report, including a very considered statement that, effectively, I would be exposing the HEA to a significant risk of litigation and damages.
We went further than that where we produced a modified version where major risks were considered to be present. We got a senior counsel opinion on this, who went as far as to say that we were not necessarily empowered to be doing this. We engaged extensively with the Department and understand it is with the Department and has gone all of the way to the Attorney General and we are waiting for that to come back. This is quite significant but it is important, given the nature of this to be upfront about that.
I am aware that Mr. Ó Foghlú cannot answer the questions but I have to say that I am amazed and blown away by the fact that this has got to the Attorney General's office. It is extraordinary that we have arrived at that situation where for those 50 people who came forward and were part of this process - if I am reading Dr. Love correctly - the senior counsel is saying not to publish this report. It is with the Department and it is trying to figure out what to do and is getting advice from the Attorney General. How did we end up in that situation? I can only read from that that the process over-reached itself, the terms of reference were not clear or the person who did the review overstepped the mark or whatever. I want to be very careful in what I say because I do not want to prejudice whatever report does come out. I want to see a report.
I must however put a deep frustration on the record. I have been personally attacked by an Accounting Officer, in respect of which Mr. Ó Foghlú also has accountability. I do my work in here without fear or favour. It is a matter of fact-----
Mr. Ó Foghlú, I am sure, knows the nature of that. It is a matter of fact that 50 people engaged with this process. It is a matter of fact that they expressed concerns. If there is a draft report that there is a fear of litigation, then that speaks for itself, in terms of some of what was in the report. I am aghast that it has gone to the Attorney General's office. This is just bizarre.
Can Mr. Beausang enlighten me as to what the Department can do now to salvage this report?
Mr. William Beausang:
It might be useful now to outline the different steps that we have gone through to get to the point that we are at currently. The Deputy was briefed by the CEO of the HEA at the committee's May meeting in private session on where things stood. Subsequent to that briefing we met with the HEA, the CEO and his team, to discuss the draft review and the legal advice that they had got on the submissions that they had received, of the CEO that Dr. Love had outlined. We responded to the CEO with our view of that legal assessment, back in June. The meeting was on 5 June and we met with the CEO and his team on 11 June. This was not a legal response but one from the officials in the Department to the legal advice that the HEA advised the committee of at their May private session. That letter was considered by a subcommittee of the board of the HEA and culminated in the HEA requesting senior counsel's advice.
The senior counsel's advice is a much broader piece of work relating, as Dr. Love has already said, to the powers that the HEA has to carry out reviews and investigations. It was a very significant and substantive legal analysis that arrived in to us at the end of July, if I am correct. Subsequent to that, we worked through with our own in-house legal adviser, a seconded official of the Office of the Attorney General, in order to develop our understanding and to formulate a question. A scenario in which the HEA's legal advice is wide-ranging-----
There was a draft report that was subsequently modified, as we know. There is a modified version which we did not know about until now. Did the Department offer the HEA any advice or give any direction on that modified version of the report being published or not?
I am going to come back to this and will ask to put down for the second round, as I want to deal specifically with those issues and tease some of that out. I am very alarmed with what I have heard so far. This has been a right mess. It is ridiculous how this has worked out but I will come back to it.
If I can come to Dr. Love's resignation email, a letter that he sent to Mr. Horgan who is the chair of his organisation. I do not want to put him in a difficult position in any way because I believe that it would be unfair of any member of this committee to do that. It is fair for us, however, to ventilate the issues that he has put in writing in his resignation email. It is important from our perspective in how it interacts with our work. He said in his email that he formed the view that his role has not matched his expectations. Can he expand on that for me, firstly, please?
Dr. Graham Love:
The key attractant for me to this job back in 2016, when I was approached, was the kind of role that involves strategic development of the sector. That is the area I am interested in. That is what was so attractive about it. Something that is as important as higher education in Ireland was the key attractant. For the four reasons I have outlined below there, I found it difficult to deliver on strategic development to the sector.
Dr. Graham Love:
I have mentioned that there were challenges as to lack of role clarity between the agency and the Department; the difficulties posed by the lack of resolution to the funding crisis; the nature of the executive to board relationship; and, the dominance of the compliance and regulatory agenda.
Can I end by talking Dr. Love through those individually? I am interested in what he means by all of that. I understand what he is saying but it is important for him to expand and to put on the record what he means. He said that the actual nature of his job militates against any realistic opportunity to deliver much-needed strategic development in the sector. This is what we were interested in and, in fact, we were working with him and, I would hope, the Department in making that happen. What does Dr. Love mean by the actual nature of his job militating against being able to deliver the reforms which are necessary?
Dr. Graham Love:
I found that the issues that we were facing day to day were a classic case of the urgent crowding out the important. As alluded to in the previous conversation - which is worth developing here because it explains a lot of the lack of role clarity question that is raised - there is a significant issue with the HEA legislation. Let me be very clear on that. This legislation dates from 1971. The HEA is good at allocating funding; it is good at policy advice and the gathering statistics and data analytics etc on policy advice; it is good, to a degree, at advocacy for the system; but it struggles significantly with the fourth function - the one that was conferred on the HEA after the Hunt report and the national strategy published in 2013 - which is the oversight and regulatory piece.
Dr. Graham Love:
It is significantly the legislation and that is what Mr. Beausang was alluding to earlier. We have found that in the conduct of a number of pieces of work, such as the one we have discussed previously in the WIT report, but also in relation to some of the matters relating to the University of Limerick, and others, we simply do not have the powers to do what is expected of a regulatory body. When push comes to shove we are not in a strong position at all. That has resulted in myself and the team trying to work almost on a voluntary and acceptance basis for things that are very often pushing people right up to the edge. As far as that side of the equation goes, we are not well set up.
What Dr. Love is saying is that while he has responsibility for governance and oversight of institutes of technology and universities he does not have the powers to truly be able to do it.
Dr. Graham Love:
On that question, at times there is a question about who does what because there are some powers in legislation for the Minister. When it comes to trying to decide on the appointment of an investigator some of the functions lie in the domain of the Minister in legislation and the HEA does not have them but there is an expectation in policy that the HEA does them. Who does them is a question that has arisen over the past 18 months and it has been quite difficult at times to be clear.
Let me be clear about this. Is the lack of clarity down to the fact there is general confusion or is it down to the fact that the Department decides it is its turf and it does not want the HEA doing what it sees as its job?
Is there any level of preciousness by the Department and protecting its organisation and what it does and stating something is its role and it does not want the HEA doing what it sees as its role and the HEA may have a different view?
Dr. Graham Love:
I do not want to refer to it as preciousness on the part of the Department but there have been times when we have disagreed about aspects of the remit. At times it has been difficult for us because in policy and the national strategy it is very much the expectation that the HEA is the authority on these issues but, in fact, as we have figured out, in many cases, including that to which we referred earlier, we are not really in a position to implement it.
This concerns us because we are all here in good faith and we have shone a spotlight on the third level sector. We have always done so with a view that the sector has many good people who do a lot of good work but we had concerns about a number of areas and we tried to shine a spotlight on them. We struggled at times to understand who was responsible for what. We did a periodic report on this issue-----
-----and we raised some of these issues. When the head of the HEA resigned and cited the reasons he did so to the Committee of Public Accounts and spoke about serious concerns on a lack of clarity, not being able to deliver much needed strategic development in the sector and a failure to resolve overall funding issues, this concerned members of the committee. As the Secretary General of the Department, when Mr. Ó Foghlú read Dr. Love's resignation email, which I am sure he did, what was his response and his view?
Mr. Seán Ó Foghlú:
We recognise there are difficulties and challenges and we are progressing to address them. I do not fully agree on the extent of the challenge there is with regard to the respective roles. We have set out in our performance delivery agreement that the respective roles are clear and we have worked through them with regular meetings.
Mr. Seán Ó Foghlú:
At present, we are consulting on legislation for the Higher Education Authority. We recognise we need to differentiate more clearly the regulatory and oversight role of the HEA. We issued a public consultation on this in the summer and we hope to move to legislation to clarify aspects of it.
Mr. Ó Foghlú is the Secretary General of the Department of Education and Skills, which has responsibility for overall funding of the education sector. I would argue that even though the HEA has a governance and oversight role so does the Department and there is a lack of clarity. If I were in the shoes of the Secretary General and I read an email from the head of the HEA that stated his role had not matched his expectations and the actual nature of the job militated against any realistic opportunity to deliver much needed strategic development in the sector I would be concerned because I would want to see that strategic development happen quickly.
Mr. Seán Ó Foghlú:
Of course I am concerned but I consider there has been significant strategic development in the sector, particularly during Dr. Love's time in office. I highlighted some of it in my opening statement. The developments on the funding model and the technological universities are two very good examples of this. We are working through change. I recognise that the role of the chief executive of the HEA must balance various interests between strategy and governance, as do all senior public servants. We are all working on these challenges. I am concerned when he raises them with me but I believe we have been advancing a significant strategic agenda for change in higher education.
Basically Mr. Ó Foghlú does not agree with Dr. Love. I commend Dr. Love on going to this trouble and taking a very personal risk. I would have preferred if he had stayed in his role, to be honest, because I thought he was doing a very good job and was a very good witness before the committee. He made a decision and that is for him. It was very difficult for him to walk away from a job such as this, put in writing that he has serious concerns and essentially state that he is not able to do his job because the lines of demarcation between the HEA and the Department are unclear and he is not able to deliver the necessary strategic reforms. It is very troubling that Dr. Love has this view while the view of the Secretary General seems to be completely at odds with it. That is fine if that is his view-----
Mr. Seán Ó Foghlú:
My view is not completely at odds. I recognise it is a very challenging role, as are all senior public servant roles, but I do not believe the job is undoable. The HEA is on a journey of change to move into the area of regulation, oversight and policy advice. If we look at the nature of the job specification for the role that was advertised we see the emphasis put on this. We are listening to his concerns and we are trying to work through them.
Mr. Ó Foghlú might also listen to my concerns, which I will articulate as best I can. We have dealt with a number of institutes of technology and universities where very serious issues have emerged. These include the University of Limerick, Cork Institute of Technology, Waterford Institute of technology, and institutions in Galway and Sligo. A report of the Comptroller and Auditor General will come out in respect of Limerick and Sligo with a separate report on Waterford. Some of these are issues that we raised. I remember when I first raised the issue of the spin out companies and research and development and we were told there was nothing to see and there was no issue. Mr. Ó Foghlú was not in a position to answer the questions then but we were told to wait and see. We pushed and pushed and the more we pushed and looked into it the more we saw there were issues. Now we have two reports, one of which went to the Attorney General and I will come back to that later. The two reports of the Comptroller and Auditor General, into Waterford, Limerick and Sligo, will deal with a range of issues. We know that whistleblowers came forward in those organisations and raised very serious concerns. Our view collectively, and we have all raised issues individually, is we did not think the issues were taken as seriously as they should have been. That is my experience.
Dr. Love spoke about a lack of lines of demarcation between the HEA and the Department but then we have the Accounting Officers of some of the institutes and universities not believing they are accountable, as far as I can see. The attitude of some of those who have come before the committee left a lot to be desired. I ask Mr. Ó Foghlú to respond to this.
Dr. Love spoke about a difficulty in the relationship between his board and the executive. What did he mean by this? I ask Mr. Horgan to respond to this question also.
Dr. Graham Love:
It relates to the first point, that the role clarity created a cloudiness and greyness at times that left the organisation and the Department not completely clear as to whose job was what. At times, I found myself in the middle of this trying to referee. Mr. Horgan will attest shortly to the fact the authority felt very frustrated at times. I was trying to mediate this on the basis of the powers we have and, in most cases, do not have, particularly when it comes to governance and oversight.
Mr. Michael Horgan:
I am personally sorry Dr. Love is leaving. He knows, I have written to him about it. One would expect some tension between the board and the chairman, and the chief executive and the executive. That kind of tension is in the board and within the HEA. It is a good thing to have a bit of healthy tension. Dr. Love is right that the combination of issues that are within our power to address, not within our power to address and over which there is a question mark made him the meat in the sandwich between the Department looking for something and us asking for something that was probably slightly different. This caused a lot of stress and pressure for him. It is the kind of thing that happens all the time between the board and chief executive in organisations. In Dr. Love's view, it was one of the issues he felt added to all the other things that led him to make his personal decision to leave.
Mr. Ó Foghlú might come back on the points I made on the institutes of technology and universities. Consider the level of co-operation this committee feels it gets or does not get from accountable persons when they appear before it. Does Mr. Ó Foghlú believe that heads of institutes of technology and universities are fully accountable to the Committee of Public Accounts and that they see it as one of their functions to be fully accountable to it?
Mr. Seán Ó Foghlú:
It is in their legislation that they are accountable to this committee, just as I am and Dr. Love is. Absolutely, they are accountable to the committee. We have a very strong governance framework, between the HEA and institutions and between the Department and HEA. I set out many of the elements in my opening statement. The extent of governance checks and so on is significant. The institutions themselves have primary responsibility to respond, and they should be speaking for themselves where there are breakdowns in governance. They should, of course, report here as appropriate.
I thank the witnesses. Best wishes to Dr. Love in the future. I am sorry to see him go. Best wishes to Paul O'Toole who is taking over his role. I used to work with him many years ago in Bord Fáilte. It is an excellent choice.
One might as well be upfront and say when one has worked with somebody. I have personal experience of working with the man.
Dr. Love's openness on the issues is very welcome. It will serve us well. I welcome the fact that he is being so upfront on the issues today. It is quite obvious to all members of the committee, who have experience of the issues concerning the HEA, that there is a serious breakdown when it comes to roles and responsibilities between the Department and HEA. We have had a number of reports and interim reports on third level issues. If there is a significant, difficult issue, what is the position on the various roles? I refer to the Accounting Officers in the individual institutions, HEA and Department. The questions of who is responsible and who takes responsibility for dealing with issues are all over the place. It is not fully known internally within the three tiers, and it is certainly not fully known to people who work in them or to us, the members of the Committee of Public Accounts. We know the heads of the institutions are the accountable officers but it is almost as if there is a pipeline of responsibility, through the HEA, through the Department, etc. Where one takes responsibility in its own right is not very clear. That is a real issue. Following on from the questions of the last speaker, I would like Dr. Love to give us specific examples, if he can, of where he feels, from a governance point of view, responsibly is falling between the cracks.
Dr. Graham Love:
That is a very significant one. It has driven a lot over the past year.
We found it very difficult in the case of Limerick previously in terms of our capacity to go in and look at the situation that had arisen there for a number of years. Members will know about the whistleblowers, etc. The issue is quite significant there as well. It is in this regard that one finds who has the power or the role to go in, or the legislative basis to do so. There is a perception that it should be the HEA, but we found we are not able to do so in many cases as we are prevented by legislation, whether it is the Universities Act or our own Act, that of 1971.
May I make a general point that might be of assistance in generally colouring this palette? The HEA's role is changing significantly. The allocation of funding role is staying the same. The organisation has been doing this for 30 years very well. The gathering of statistics and producing of intelligence about the system for policy advice are being done very well, in the main, but, since the Colin Hunt report of 2011, which turned into the national strategy for higher education, a significant regulatory oversight role has been given to the HEA. The policy has developed quite a bit over the past few years but the legislation underpinning it has not matched that. That is where we have run into trouble. A classic role change is taking place in an agency that is driving some of this greyness. That is an opinion but-----
Dr. Love is spot on. That is a fairly accurate and useful comment. Mr. Paul O'Toole is entering the role. Will he be as constrained as Dr. Love was? Are we in a vacuum whereby, from a regulatory point of view, nobody who is ever in Dr. Love's role will be able to deal with the issues in the way this committee expects or the public would require until this legislation is dealt with?
Dr. Graham Love:
Certainly, the HEA, when it comes to serious stuff, is not empowered and will not be until the new legislation that was referred to earlier is being implemented. There is a consultation and, if the role described is the one envisaged, it needs to turn into hard legislation that empowers. Some of the powers do vest in the Minister. There are some powers today, in terms of the Institutes of Technology Act, etc., to-----
This is pretty good stuff. In fairness, the consultative process is going on so we know there is a requirement to do as proposed. Until it is actually dealt with, and because of the Hunt report, the obvious changing role of the HEA and the fact that the legislation does not match up to it, we will not be able to meet the standards required from a regulatory point of view. That is just a fact.
Dr. Graham Love:
There is another layer to this, if I may bring it up, namely, governing bodies in the institutions. Deputy Cullinane referred to this. There are 24-plus institutions and it is critical they get it right so there will not always be reliance on a central body such as the HEA or the Department. They have to be skilled and enabled, and they have to take responsibility for doing this stuff themselves. It should only be the trickle-over bit – the exception – that ends up-----
Mr. Seán Ó Foghlú:
It is a priority. I support Dr. Love's comments. We must be very careful that the primary responsibility is with the accountable person within each institution and the governance role with the governing body of each institution. The most important frameworks are the codes of practice for the two sets of institutions and the HEA's oversight of those. What Dr. Love is referring to is the partial legislative lacuna relating to the universities when a very serious intervention is needed. We have some powers of investigation, and stronger powers of investigation with regard to institutes of technology. In the case of the University of Limerick, we worked very closely with the HEA. Together, we engaged with the University of Limerick and with its agreement, the HEA led on an independent review. It was possible but we had to get its agreement to do it. Furthermore, with the HEA, we have come up with a concept of rolling reviews, which has also worked well. As Deputy Cullinane mentioned, spin-out and procurement were two examples. They were very helpful in terms of advancing policy.
-----in the context of spin-out for the CIT companies. I must be honest with Dr. Love. CIT is the gift that never stops giving to this committee. It has been going on for years. The evidence that has been provided is incredible. From a regulatory point of view, if Dr. Love wants an example of breakdown and falling between the cracks, that is it.
Mr. Seán Ó Foghlú:
If we receive a disclosure about an institution, we ask the HEA to engage with the institution in respect of it. Typically, without revealing anyone's identity, there would be an engagement to get an initial response from the institution about the nature of the disclosure and how it wished to act in respect of that. The HEA would consider that initial response, discuss it with us and see if it was satisfied. If it was not satisfied, further action might have to be taken.
Does Dr. Love agree with those steps? Does he believe that there were any issues during his period of office - I am not getting into any individual cases - where protected disclosures were not been dealt in the manner in which they should have been? Were there any case that would be dealt with differently if they were being dealt with now?
Dr. Graham Love:
I think I know the case to which the Deputy is referring. The process described by Mr. Ó Foghlú is correct. I know there is a dispute regarding the nature of a particular disclosure that was made in one of the institutions referred to by the Deputy. Can I be forthright? We are moving towards the end of a process with CIT and are awaiting a final report that is being verified by the board and the audit and risk committee there in response to a disclosure we received last year. It came to the Department first and then to us. I must be very careful in what I say here so that I do not draw inappropriate links to a disputed case regarding whether something is a protected disclosure that was made several years prior to that. That is a separate matter.
Basically, it is where a disclosure is made, the issues are the same and it is followed up. In respect of the case referred to by Dr. Love - and, obviously, we will not go into any details - does he believe it was dealt with appropriately through the Department? Was there any part that should have been dealt with differently? For example, where a disclosure is made to an individual in the institution and that person is part of that disclosure, should he or she actually be involved in dealing with the disclosure in the first instance?
Dr. Graham Love:
Typically, when we try to get information relating to something like that, we kick it up to the next level. If it involves person X, we try to go to the X-plus-one level in the organisation. That is a typical way around this. I think the Deputy asked whether I thought it had been done properly in this case. I do not yet know because we only got a new protected disclosure last year as part of our investigation into that, which is not yet complete but which will be soon. We want to get a response from the institution.
What happened before 2014 when it came to disclosures? What process was in place through the HEA and the institutions under it? How were they dealt with? How did a person making a disclosure prior to 2014 know that it was a disclosure? What processes were in place, was there a uniform process across institutions, was there guidance from the HEA and what was in place prior to 2014?
Dr. Graham Love:
Prior to 2014, there was nothing in the form of the protected disclosure that we know today. The legislation only came in during the summer of 2014. Prior to that, it involved the good faith policies in the individual institutions. I know this matter is potentially at issue in this case.
Dr. Love will not know the dates off the top of his head but I would appreciate it if the HEA would write back to the committee. On what dates, if at all, did the institutions introduce employee assistance helplines?
This is a general concern of mine that is directed to Mr. Ó Foghlú. Obviously, in some ways, this is an example of falling between the cracks. It concerns how issues relating to how protected disclosures were dealt with from a governance point of view.
Fine, I am just talking about it as an issue rather than as an example of a case. I presume we will find out when the report is published. Issues might be dealt with in a certain manner now but is Mr. Ó Foghlú satisfied that there were clear knowledge guidelines in place between the Department, the HEA and the institutions in recent years regarding how all of these issues were being dealt with?
Mr. Seán Ó Foghlú:
The codes of governance have evolved over time so we have had a number of different codes with regard to overall governance issues and have updated them as the central one has been updated by the Department of Public Expenditure and Reform or as other issues have emerged in accountability terms, including issues such as this.
We have been seeking to improve accountability on a continuing basis.
Clearly, on protected disclosures, with the passing of the legislation the arrangements have been more standardised and have to follow the legislation. However, the redress parts of the 2014 legislation are retrospective so that a person who feels that he or she was not appropriately treated and made a disclosure previously does have access to that. That is something unique about that legislation.
I welcome everybody. My records show that a meeting of the committee in May 2014 discussed whistleblowing. I was not a member at the time. The minutes show, in the context of what Deputy Kelly said about what would have happened before the Bill was passed, that Mr. Ó Foghlú stated that even as late as the previous week the HEA had written to the institutes of technology about whistleblowing, asking them to ensure that they put arrangements in place to deal with any issues that may arise prior to the completion of the legislation being enacted. Was there a response from each institution on that or was that merely a memorandum that was sent around?
We have had somebody suggesting good faith policy. The hope was good faith policies were in place and that it is hoped that would have been the default position should what we now describe as disclosures come forward. In Cork Institute of Technology, CIT, for example, we had a draft disclosures policy. If Mr. Ó Foghlú recalls, it arose at our previous meeting. Was there any sanction for colleges that did not follow a protocol?
There are a few points on a similar subject matter that I would like to put on the record. The matter dates back to June. I will refer to the transcript of that day. On three occasions, December 2015, on which date I would not have been here, June 2017 and June 2018, the Committee of Public Accounts was informed by the president and vice president of CIT that they never received a disclosure before the Act. Dr. Love was alluding to this with Deputy Kelly but I want to go into a bit more detail. On three occasions, they said that. There was reference to an unnamed whistleblower in the context of a letter that came to the vice president. That was eventually admitted.
We know this is nonsense because I have an email from the vice president which was referred to in a Topical Issue debate on this issue by Deputy Kelly, Deputy Cullinane and me. I will read it into the record: "Just to confirm that I have a copy of the letter you gave to [X, who was a head of faculty in the college] dated the 9thof October [This email is dated 12 October 2012] and that I will deal with it." This is from the vice president, the person who told us on three occasions, along with colleagues, that there was no disclosure. It goes on:
I have attached copies of two policies that will guide us in terms of developing an approach when we meet on Tuesday at 6. Please note that the disclosure policy is only in draft currently but I would suggest that we will apply it in this case.
That is the email of 12 October 2012. It would seem to my untrained interpretation to be a clear example of what we would now describe as a disclosure, considering that use of the disclosure policy, albeit in draft format, was suggested by that self-same individual, then vice president, who was responsible for a wide variety of areas and who suggested that no such disclosure took place. That was brought to the Minister's attention in the House on 10 July last and I note there has been correspondence with Dr. Love. What is the HEA's position on this?
I am back in 2012 here, and that is what the question refers to. The HEA got a disclosure in 2017 that went around the houses. Unfortunately, from a governance perspective, there seemed to be a bit of checking in with CIT before it went to the HEA, which is not good governance. I note Mr. Ó Foghlú suggested that sometimes, through the back channels, one might touch base to see what their initial response is.
I used the words "back channels", because it was inappropriate to have done so. The Department should have gone to the discloser. We are talking about 2012. What is the HEA position on that? Was it a disclosure or not?
There may be similarities between one and the other and I appreciate that. What I am asking is very simple. Is it the position of the HEA and the Department of Education and Skills that the 2012 matter was a disclosure or not?
The HEA has all this correspondence now. From what the HEA knows of it, and Mr. Ó Foghlú of the Department should feel free to come in whenever he wants here, and I am happy to give them copies of the email if they do not already have it-----
Mr. William Beausang:
There is an important point to be made here, and it came up the previous time we were here. It is never possible to say whether a disclosure is a protected disclosure until a third-party process adjudicates on that and a claim is determined in looking at whether a person has been penalised for making a protected disclosure. Obviously, the policy is that an assessment is made as to whether an issue should be treated as if it was a protected disclosure and as to whether it looks, by virtue of that process, that it may fall into that category and should be treated in a serious manner as a result of that, but one cannot determine outside the legal process whether a protected disclosure was made.
We must be careful on that as otherwise-----
Mr. William Beausang:
It would be something like the Workplace Relations Commission. If I made a protected disclosure in the Department and I felt penalised by the Secretary General as a result, the Protected Disclosures Act 2014 allows me to go to the Workplace Relations Commission and have it determined as to whether I have made a protected disclosure and been penalised as a result. In those circumstances I would have very significant legal rights in terms of compensation, for example. Those are the circumstances in which the issue is ever only answered. Outside of that, it is around this process of making an assessment of whether it is likely and whether people believe it falls under the categories in the Protected Disclosures Act. It is an important distinction and we can never be absolute. There are clearly circumstances in which one might look at a report or disclosure and be quite convinced that it falls into the category of protected disclosure and should be treated as such, but one cannot say it definitively. It is a matter for the Workplace Relations Commission or the Circuit Court if some interim leave has been granted.
That is what it would be in practice. We have an example from before the legislation, which is 2012 in this instance, and an example from after the legislation, which is 2017. In the meantime there is a discloser out of work since 2014 and unable to get answers from anybody.
Mr. Seán Ó Foghlú:
We cannot look at specific cases because we are precluded from doing so. A disclosure is being considered currently and we cannot get into the detail of it. There are different rights of different people involved, including the disclosee and any person or organisation that he or she makes disclosures about. The Higher Education Authority, HEA, is clear this is in process. The person who makes the disclosure can always go to the Workplace Relations Commission if he or she wishes to. That is the protection in the legislation. We cannot get into analysing protected disclosures when the process has not been completed. The HEA has indicated there may well be a link between a possible disclosure of some sort in 2012 and the case under consideration. It cannot come to a view until the process for the current disclosure is complete. It is very hard for us to say anything more than that. This has not fallen between the cracks and we are working together on it. We are working through it. It is a very difficult-----
Mr. Seán Ó Foghlú:
The Deputy is getting into the detail of the disclosure. When the HEA receives a report on the disclosure, it will see who it is about and who is involved in any process. Dr. Love has said he does not believe anybody involved with the disclosure is involved with the process. The authority will have to satisfy itself when it sees the response. Other than that, it is all hypothetical comment on a real disclosure. This is risky territory and I am a bit uncomfortable about this.
It is like the "commercially sensitive information" cop-out that we regularly get from people or if something "is a matter for the courts". It seems to be a matter for everybody except the public or the poor discloser who is being thrown under the bus.
Fair enough. Clearly, Mr. Ó Foghlú disagrees. I will wrap up in a moment. Will Dr. Love give me that timeline again as I interrupted him very rudely? The HEA is awaiting a report from the institute.
The Minister has powers to commission various investigations and the HEA has not with respect to universities. The process for the Kildare and Wicklow Education and Training Board, ETB, was commissioned by the Minister.
Okay. The HEA commissioned a report and issues have yet to be resolved. That is fine and the matter is parked until we get there. The Minister has separate powers to commission an investigation if he or she believes statutory requirements to do it have been met, as was done in the case of the Wicklow and Kildare ETB.
Yes, he did it with the previous case in Waterford. In other words, power rests with the Minister. In parallel, the Minister for Health could commission HIQA to do a report on a hospital if he or she so chose. What power does the Minister have to commission an investigation? I know the HEA might be constricted with its legal powers but perhaps whoever drafted the legislation did it to leave the power with the Minister. If people feel the HEA has a role and authority, perhaps it should have some of the delegated power that the Minister has. The power might exist but it might not be with the HEA. I am only asking a question as I want to understand this.
We will wait until we get a fuller picture and more information on the powers of the Minister compared with the power of others. A review of legislation is being done at the moment. It is under consideration and there has been no decision. What stage is that review at?
Mr. William Beausang:
Ideally, we would like to enact legislation in 2019. If we bring draft heads to Government in early 2019 and they are of a high quality, there is no reason, subject to prioritisation by Government, that legislation could not be drafted in the course of the year. That is, however, a decision for Government.
Mr. William Beausang:
There was a broad acceptance, reflecting many of the themes we heard this afternoon, that it is important that the HEA is equipped with the regulatory powers needed to carry out its functions. I should say that some of the higher education institutions, and the universities in particular, would highlight the need for-----
When the Committee of Public Accounts examines third level institutions, we are looking at their financial matters and not their academic independence. We do not go there. They might hold their academic independence to state that nobody could come at that at all-----
Dr. Graham Love:
We are looking for the capacity to send investigators into universities, if needs be. Deputy Connolly will know this has been a significant gap in the past. It is a kind of zero or nuclear option in the Universities Act 1997. I refer to the visitor function. That was one aspect. We also talked about regulation of the system and looked around the world at what other jurisdictions were doing and the different types of regulation. We looked at the models in New Zealand Hong Kong and the recent change in the UK etc. We advised or gave a view on some of the different systems because it is a trade-off, as Mr. Beausang said a moment ago, as to how far to go and-----
I am here about two and a half years, I think, since February 2016. Roughly, on this committee alone we have got an investigation into the Grace case - it came before the previous Committee of Public Accounts - in the south east and an investigation into Project Eagle. In this area of education, we have an investigation into Limerick IT, Kildare-Wicklow Education and Training Board, Cork IT and Sligo IT. We have the Comptroller and Auditor General-----
I am trying to show how difficult it is here as a member because governance is not working. It is simply not working. That is why we end up with tribunals or commissions of investigation. That is the difficulty I see. If we look at the Grace case, which has nothing to do with the HEA, there were three reports. Had those reports worked, there would not have been a need for a commission or a tribunal. I refer to Project Eagle and all of these investigations. That is by way of preface. I am only mentioning a tiny amount and we are only a very small country of just over 4 million people. It seems extraordinary. On the report into WIT, when is it envisaged that it will be published, if at all?
Mr. William Beausang:
We wrote to the Office of the Attorney General on 18 September and we met advisory counsel on 21 September. It is not with the Attorney General for very long but it is being treated as a priority. We expect to receive a detailed response shortly. To be clear, and to correct what I said earlier, I am referring to our request for legal advice on the powers of the HEA to carry out reviews. That will then inform the next steps of the HEA in finalising the report.
Mr. William Beausang:
It is going to be very detailed advice because it relates to what powers the HEA has to carry out reviews and investigations. The legal advice we got from the HEA was that its senior counsel could not identify a power for it to carry out reviews and investigations. We have therefore sought a definitive view from the Attorney General on whether that is the case.
As my colleague has indicated, this is very serious because if the HEA was acting without power, then this report cannot be published. Is that correct? I refer to whether the HEA was acting ultra vires or outside of its powers.
Mr. Michael Horgan:
It had not come up before the Waterford Institute of Technology, WIT, report. To go back through the history of all of this, the Higher Education Authority Act 1971 was written in broad terms. It is a short Act, each section of which is a line or two. I suspect that at the time it was viewed as a good, enabling Act because it was not specific.
Mr. Michael Horgan:
Part of what has happened is that when the Hunt report suggested the HEA should have a regulatory role, that became the national strategy, and I think, although I was not there then, that the HEA assumed that it then had the power because of the contents of the Hunt report and the national strategy, but the legislation did not catch up with that. That is the area where our legal advice-----
That is clear and the HEA's representatives have been clear, upfront and blunt about it. My question is when the board of the HEA became aware of it. Dr. Love says it did not until the WIT report.
Dr. Graham Love:
That is the territory of the further education and training sector and SOLAS, to be clear. On the question about UL, the report goes back a few years. There were a number of attempts to access UL that either were not received or were not complied with. I imagine it was then that the HEA understood it did not have power with regard to universities, at least, because it was clear the Universities Act prevented it. The power has moved on and been built up subsequently with the institutes of technology and so on, which comprise separate legislation, which the WIT case made clear. It has been a process of becoming clearer over the past couple of years since about 2016, when the UL report was published.
I thank Dr. Love for releasing his resignation letter. I know it is difficult and I do not intend to ask a single personal question. I wish him the best of luck in his next job or in whatever he chooses to do. I also thank him for his frankness every time he came before us.
All the reasons Dr. Love gave for his resignation concern me. Will he clarify what he meant by the dominance of the compliance regulatory agenda, which is one of the four reasons?
Dr. Graham Love:
I will elaborate on it but also try to be succinct. I am probably a bit blunt here but I think that is helpful to the committee. It is hard to put an exact percentage on it, but I think I have spent more than 70% of my time in this space since I joined a year and a half ago. While I understand that oversight and governance would be a part of the role, I did not think it would be on such a vast scale. It is partly because a significant number of issues were coming forward, but also because of all the other issues we have been discussing here today, namely, that the machinery, the architecture and so on are not suitable to take care of some of the issues.
Also, something we have not discussed enough here today is the responsibility that lies with the governing bodies of the institutions themselves to manage this, which is the bit that we ultimately need to get right. We talked about the HEA legislation that is required for the emergency position or spillover, but we have to get it right at the level of the individual institutions. They need to have this working properly.
I agree with Dr. Love on that point, as I think we all would. All the governance procedures are in place to avoid these types of investigations. We agree with Dr. Love and we see the gaps every time the organisations come before us. It is particularly shocking to see it in the third level sector, which is one of the most privileged sectors, where there should not be any difficulties.
The regulation and compliance should be dominant. I am not sure if I am correctly interpreting the phrasing in Dr. Love's letter. Does he mean there is an absence of regulation and compliance where they should be dominant?
Dr. Graham Love:
I was trying to outline the dominance over all other issues, especially the strategic development, which is why I used the example of 70% of my time. I would expect, as an accountable person should, that there would be oversight and governance work to do. When it takes 70% of one's time, however, and one cannot pay enough attention to other things to develop the sector-----
Okay. I will finish because it is late and we have been here since 9 o'clock, but I would love to continue discussing education here. I would like to discuss Springboard and the fact that it has dropped significantly from €21 million, and to ask why. If the Chair lets me ask that, I will certainly ask it. There are many other interesting items here that one should look at to see if we are getting value for money.
Dr. Graham Love:
It is just a timing issue with how the funding is allocated. It is actually a growing programme. This is important because it is nice to talk about something strategic for a moment. The Springboard programme is fundamentally changing. It was born in a time of 15% unemployment, which it was an excellent measure for combating that. It is morphing into a programme for upskilling within jobs because we have moved down to between 4% and 5% unemployment, which is a significant change in the programme.
Dr. Graham Love:
It contains some of what I wished it to contain, but the problems are being caused at a higher level, through the legislation and so on that we discussed today. We put the full annual work plan into that performance level agreement but we found ourselves running into problems with actions on the work plan because, for example, we do not have the powers in certain places to do what we are expected to do.
I will probably be repetitious in touching on some topics because it seems to be all about governance and accountability today. As was said, it is a pity we are not talking about further education and having a better system in place, rather than talking about governance and accountability.
I am sorry to hear that Dr. Love is leaving. I wish him well in his future career wherever he goes. Is the reason for his departure the system of governance in place and the relationship between the HEA and the Department? Perhaps I am asking him to repeat some of the things he has said, but is that one of the reasons that influenced him to retire from the role after 18 months?
Dr. Graham Love:
Certainly I have been frustrated. I was attracted to the job because of development work such as pushing along the universities and institutes of technology. As Deputy David Cullinane referred to, I am passionate about this stuff and research. Ireland's talent is its main chance. We do not have a big internal market, or oil and other resources. Our people, their education and smarts are what Ireland has to offer; it is what makes living standards high in this country. I really believe in them. In my year and a half with the HEA I have struggled to advance this work significantly, for some of the reasons I have laid out in my letter. Frankly, all four aspects are interrelated in terms of legislation. For example, the term "dominance of the compliance and regulatory agenda" may be a poor choice of words, but it has subsumed me and much of our team. We have not been able to work enough on the really good initiatives because of the time available.
Dr. Love's talents are very honourable. We consider Ireland to be the island of saints and scholars. While I do not know about the saints, it is important that the scholarly ambition be retained.
On Mr. Ó Foghlú's statement, every bit of the report is about accountability and governance. It includes lines such as, "The introduction of a new governance framework for the higher education system in 2015 ... to provide assurance of compliance with legislative and other requirements." It goes on: "The review of the allocation model for funding higher education institutions, undertaken by the HEA ... will provide greater transparency in how State investment in higher education is being allocated," and "The Department works closely with the HEA to strengthen governance arrangements and ensure a robust system of accountability in the sector." It is all about accountability and governance. Have we had a creaking system in place up to now? Was the system broken when this five or six page report which is all about new rules and regulations and proposed plans was compiled? What was wrong with the system up until now that we had to look at reviewing all of this? Where did it fall down during the years in the Department of Education and Skills and the Higher Education Authority?
Mr. Seán Ó Foghlú:
We have been seeking to improve governance in the past few years. There has been a hugely increased emphasis on governance. In a way, we have sought to detail the nature of governance relationships, be it through institutions and the HEA or between the HEA and the Department, in order that there will be increased clarity. The committee will see in our performance delivery agreement with the HEA that there is clarity on what it plans to do and what the Department's expectations are in terms of outputs and outcomes. It is a much improved way of doing business with agencies. We are doing this with all of the national agencies and it can work very effectively in order that we will all know what our plans are for a given year. We do a lot more than governance; there is a lot more than governance being called for in the actions in the performance delivery agreement, or in the Department's strategy for the action plan. The focus, obviously, has to be on governance and accountability.
Is Mr. Ó Foghlú saying there were failures in the system and that it was creaking up until the new regulation on governance was brought forward in 2015? Where were the failures, problems or the breakdown in the system?
On the institutions under our control that have been mentioned such as those in Limerick, Cork and Waterford, as well as the institutions in counties Kildare and Wicklow, representatives of have appeared before the committee, and where the big faults were found in the system, were the institutes out of control in ignoring the rules and regulations in place and in terms of the powers to control them? Somebody has to say why these things happen, without interference. Were the institutions out of control? Were they self-governed? Were they ignoring all of the rules and regulations in place? Is this to try to bring them to heel?
Mr. Seán Ó Foghlú:
There have not been findings in the HEA's or the Department's investigations on Cork Institute of Technology. Obviously, there have been some governance issues, but there has not been any major investigation. I cannot refer to the Waterford Institute of Technology investigation, but previously there were serious governance challenges, which is why there is an investigation. The issues are related to the nature of borrowing to fund certain activities. With reference to the University of Limerick, we have had the Thorn report and there is a report pending from the Comptroller and Auditor General. We will be appearing before the committee at some stage in the future to talk through that report.
It was all about governance. Why did we have representatives from those institutions before the committee and why were we asking questions? Why were there investigations after they had been here? There were questions to be answered, whether about governance or errors. There was a breakdown somewhere along the line. They would not have been before the committee which investigates how public money is spent unless there was a breakdown. The committee has a remit to bring them to heel and ask them why there were problems. Somebody has to be responsible. I would like to know why.
Mr. Seán Ó Foghlú:
As Dr. Love said, the primary responsibility lies with the institutions and their governance arrangements. Just as committee members do, the Department and the HEA have to call out minor and larger bad behaviour, draw it to their attention and seek to tell them to put new arrangements in place. However, the institutions are responsible for the new arrangements.
Mr. Seán Ó Foghlú:
It is not so much about self-governance, it is a set of statutory rules. For example, membership of governing bodies and so on is not about self-governance; it is just governance. Institutions have to be able to operate independently. There cannot be command and control in how institutions are run as that would not work and we would not have our responsive education system in meeting the need for skills. Dr. Love spoke about the responsiveness of the system. There have been significant developments in recent years in the work of the National Skills Council and the engagement of the human capital of the institutions. These aspects are best enabled by having responsive institutions taking responsibility. If the Department was to oversee and control higher education institutes, I could guarantee it would not work and it would have a worse outcome for Ireland's future economic development.
Should there be some system in place that would ring an alarm bell if there were breakdowns or breaches? Everyone is not perfect and there are always breakdowns and problems with individuals or institutions.
On powers to investigate in the future, does the legislation need to be strengthened through the Dáil or is it a matter for the Minister? Who has the power to give the HEA or another entity the power it needs to step in? Who is responsible? Is it the Minister of the Government of the day, or is it us as legislators?
Mr. Seán Ó Foghlú:
Yes, the Oireachtas is responsible for the overall framework, but it is not its responsibility to come up with new frameworks for every part of the public sector. It is the responsibility of the Minister to propose them to the Oireachtas. It can come up with proposals, but primary responsibility rests with the Minister.
My last question is about the relationship between the Department and the HEA. Does Mr. Ó Foghlú think it is good, with there being no conflict and with transparency and accountability between the two? Is there a good working relationship?
Mr. Seán Ó Foghlú:
I think there is a good working relationship. We have achieved a lot together. Dr. Love referred to issues where there might have been legislative lacunae. We are seeking to address them. It is not that the HEA and the Department have been arguing. I can think of quite a number of aspects that have been advanced significantly in recent years through co-operation between the HEA and the Department.
A very good example of that is the technological universities and the Dublin Technological University. When the legislation was passed the HEA went out of its way to ensure that an independent process would be put in place very quickly while the Minister of State in the Department is encouraging all of the institutions to come together, appropriately, to serve these and to establish technological universities. The HEA has to be independent in its role. It undertook its role independently and speedily and that led to the designation of the first technological university. That is just one example of good co-operation and reflecting respective roles.
Dr. Graham Love:
In the main, those are the key things that have caused the issues we have been through at length here today. We need legislation that clarifies who does what. We also need to strengthen governance in the institutions because I do not think it is the role of the HEA or the Department to step into every situation and sort it out. There has be a self-learning and self-correcting capacity, and it is there in quite a number of institutions but it needs to be spread further.
Can I make another general comment?
Dr. Graham Love:
I am mindful that this is a public session, etc. While there is more to this Act, which was produced in 1971, the key functions are set out on five short lines. There was a time when there were about 25,000 students in the system, or maybe 30,000. There are 250,000 students in our system at the moment.
Dr. Graham Love:
Our third level system had done a fantastic job. In addition to our tax, talent is one of the reasons we are where we are and it is really important that we treasure this. It is also a reason to get the governance right but I do not want that message being lost in here. There are 250,000 students and nearly 20,000 staff across 24 institutions. In terms of the level of funding, by international standards we are pretty efficient in producing approximately 45,000 graduates every year. It is really important to make that intervention and get that on the record here. This is one of our good products as a nation.
I want to deal almost exclusively with the Waterford issues. I wanted to expand on them earlier but I had to deal with other issues.
I will make a general point about the overall issues raised today, one which is separate from but also slightly related to the issues with Waterford. We have had a very good hearing for a number of reasons. The meeting has given us a glimpse into where improvements need to be made, and we, as legislators, must do our part. I fully concur with Dr. Love that we need to get this right at local level in the institutes. Governance boards in institutes and universities are extremely important. If one gets governance right in the first instance, the HEA would not spend 60% or 70% of its time engaged in firefighting.
Essentially, it is engaged in firefighting rather than proactively considering the necessary strategic changes and development. I hear that message loud and clear. There are real lessons to be learned. I hope the Department will also accept that because it is very important for all us that that is the case.
We are also very mindful of the huge amount of talent in the third level sector. I will discuss Waterford Institute of Technology in a moment. I have visited Telecommunications Software and Systems Group, TSSG, in Waterford a number of times. I have also visited ArcLabs. I was blown away by the incredible cutting edge research and development and technology in those centres. Such talent should not be lost and it is not lost on me. Sometimes it is portrayed as that by those who seem to have an issue with people asking genuine questions. The work that is being done is amazing and I share Dr. Love's enthusiasm and respect for the huge level of talent we have in the third level sector.
I will return to the Waterford issue because it is important but I will first quickly contextualise it. The matter first appeared on the radar of the Committee of Public Accounts when the accountable person, the head of the institute, made what seemed to be genuine mistake when, in answer to a question at a meeting of the committee in 2015, as to whether he was a director of the FeedHenry company, he said "No". Subsequently, he wrote to the committee stating he had made a mistake and confirmed that he was a director. However, he did not disclose that he was also a shareholder but we subsequently got that information. He then asked the governing body to do a report and examine whether he had acted appropriately. It then did a review and the individual in question then asked the HEA to validate this internal review. Then, coincidentally or not, protected disclosures were made to me and information came to light that people had broader concerns connected with research and development in spinout companies. This led to the deeper dive, as described by Dr. Love, that resulted in the HEA review. Mr. McLoone was appointed to be the person to conduct the review. He met many more people than Dr. Love may have expected.
I want to get the timelines and context right. A draft report was done and it had to go to the institute. I imagine senior management and, potentially, people who may have been identifiable in the draft report would receive copies. That is part of the process.
I accept that. We will deal with the issue of powers because the matter is now with the Attorney General and we will get advice, not only on the Waterford report, but the powers of the HEA to do these types of reports.
If I was legal looking at it this, there is the issue of whether the HEA has the powers to do this. There is also what is in the report, its content and the facts that were established. Were there concerns about the facts that were established? Was it more-----
Dr. Graham Love:
I understand the Deputy's question better now. My apologies. The principal concern was the facts that were established led to the legal view that the HEA, with the kind of material being written in the report, was potentially impacting on individuals and, ergo, what power does it have to do that. The legal opinion then was that it did not have power to do this.
This is very important for me. We have established facts that are in a draft report and a modified report, which we cannot see and may never see. The facts are there so the issues do not go away. We will deal with whether the HEA has these powers but the issues still remain.
I want to paint the scenario and maybe Mr. Beausang can help me with this matter as well. The Attorney General will consider whether the HEA has powers. In fact, this matter is very interesting because it could set a precedent in many ways in terms of what the HEA can and cannot do. It is, therefore, very important and has wider implications beyond Waterford. Let us consider for a second that the Attorney General decides the report is outside the powers of the HEA and cannot be published.
In that scenario, there seem to be a number of options. The HEA could start again within its powers. The report could be scrapped by the HEA and we could have a report compiled on foot of a ministerial direction, which is, perhaps, what should have happened in the first instance. Alternatively, some other body could do it. Would that body be a commission of investigation, a law enforcement organisation or some other regulatory entity? The witnesses are going to have to help us to understand who will examine this, because the facts remain and they are not going away. Before I leave here today I want to know what is going to happen if this report is dead in the water.
Mr. William Beausang:
In the first instance, it is important to say that we have not sought legal advice from the Office of the Attorney General on the WIT review because the legal advice we received from the HEA related to its broader power to carry out reviews. When we receive that advice, we will have to apply it to the situation in which we find ourselves or in which the HEA finds itself.
I ask Mr. Beausang to stop for a moment because I am going run out of time and I have a number of other points to make. The HEA will make that call at some point. The call will be that it cannot publish the report, based on the legal advice and the advice of the Attorney General. Dr. Love said that, in principle, he wants to publish the report but that it may be out of his hands; it may not be possible. In that scenario, we should not leave the matter there. The committee can form its own opinion, but in my view we should not leave it there. We are going to have to look at the options. The options I can see are the ministerial or departmental option; or alternatively, some other body. The issues have not gone away. I know that Mr. Ó Foghlú cannot answer the question, but perhaps-----
If it is the case that the report is dead in the water - let us hope it is not - then the Department and the HEA will have to come back. In light of that advice, we will then discuss what is next. My point is that the matter cannot be let go; it cannot end there. It is not going to end with a conclusion that the report cannot be published, that we must forget about the 50 people who engaged with the process and who have concerns because, unfortunately, the review relating to the report was outside the proper remit. We will come back and look at a different avenue. That is my point.
I want to raise several other issues-----
Mr. Michael Horgan:
That would also be our intention. We have legal advice at the moment, so we have to manage that risk as well. It would be the intention of the board to look again at the process we have gone through and at the contents to see if there is a way that we can produce a report. That is what Dr. Love was suggesting. The principle of producing a report remains.
That is what I wanted to flesh out in a bit more detail. It may not be the current modified report. Come what may, there has to be some process that does exactly what Mr. McLoone did, but within whatever remit and powers-----
-----are appropriate. The established facts are never going to change. The facts are the facts and they have to be made public at some point, because that is what public accountability involves. That is my point.
I have very real concerns about the way I, as a member of this committee, was treated. I want to put them those concerns to Mr. Ó Foghlú and Dr. Love. Mr. Ó Foghlú can answer my questions because they do not relate to the actual report. The accountable person who appeared before the Committee of Public Accounts last year said to me outside this committee room - in a very robust way, if I can say that - that if I continued to ask the questions I was asking, he would resign from the institute. Does Dr. Love think it is acceptable for an accountable person to do that?
Here is my concern. We have a HEA examination into an institute. The accountable person - the head of the relevant organisation - went to local media in the constituency of a Deputy who is member of the Committee of Public Accounts and called into question the motivations of that member in asking questions. This person said that the member, referring to me, was trying to deconstruct 20 years of work done by the institute; that he was trying to damage Waterford city and county; that he was not acting in the best interests of the staff; and that he was acting on the basis of ulterior motivations which he has never put on the record. That is a very inappropriate way for an accountable person to respond to the Committee of Public Accounts. We have written to the accountable person and asked him to put his claims in writing.
I am saying this to Mr. Ó Foghlú and Dr. Love because it fits into our relationship and the role we play. It gives me no pleasure whatsoever to have to examine issues concerning any institute. However, we are appointed to this committee to do a job without fear or favour and to pose questions. I did not invent the issues. People came to me with protected disclosures and information and we had to do what we felt was best with that. It is completely inappropriate for an accountable person to call into question the motivations of a member of the Committee of Public Accounts who was simply asking questions. That has also happened to other members here in the context of work they do. Yes, it is a matter for the accountable persons, but surely it is also a matter for the Department and the HEA to ensure that we get certain protection. We are allowed to do our job and nobody is above accountability. Does Mr. Ó Foghlú accept that?
Mr. Ó Foghlú may bear with me for one second. I will be very straight with him, as the Accounting Officer for the Department. If the head of an institute comes before the Committee of Public Accounts, is asked questions and then raises questions outside the committee about the motivation of the member who asked the questions in the first instance and if all of the questions asked were about facts and information which was presented to us - which actually led to a report that ventilates the questions - that is a real issue. It could happen to any member of the committee.
Mr. Seán Ó Foghlú:
The primary issue is that an accountable person is accountable to the committee and operates on that basis. I will note that there is an issue concerning evidence from one institution in higher education and we will come back to that at another time. The committee has had issues with the University of Limerick. We are very concerned about that and we have acted on that concern. To be clear, when accountable persons are before the committee, it is their role. I may not think their conduct outside of here is very advisable behaviour, either as presidents or accountable persons. If, however, there is a concern, the primary responsibility for the behaviour of a president of an institution is with the governing body. It is not for the HEA or the Department of Education and Skills to intervene in that regard. That is where the primary responsibility for an overview of that person's behaviour is.
That is an acceptable response. We will have the Accounting Officer before the committee again at some stage and we will address those issues.
If I can just make a final observation to the Chair, this issue has given rise a larger one, namely, the remit of the HEA in the context of conducting reviews. That is actually quite serious for our work. It could call into question previous reviews and whether they have protections. Perhaps some of those were done outside the scope of the HEA. To me, this has very profound implications beyond WIT.
We cannot pre-empt and one has to extrapolate from the advice of the Attorney General, but if it is the case that the report has to be shelved, then we are in very dangerous territory, as to future reviews, who does them and what exactly the role of the HEA in all of that might be? We raised concerns about some of this, about these independent reports that were being done and their nature and powers. The Cathaoirleach may remember that there was a lot of them and we had these concerns. In fact we raised concern about legalities on the Waterford one.
We are where we are with it, in many respects. We are definitely going to have to come back to this once the advice comes back.
The issues at Waterford IT are very real. There is a huge amount of good work being done. I commended Dr. Love, and Mr. Ó Foghlú will know that the cutting edge technology we have in research and development in Waterford is absolutely first class. As we sit here today, however, we have 50 people who engaged with a process who are left without answers to questions that they put. That is the outworking of it. They deserve the answers. Those 50 people who engaged with the process, many of whom still work within the institute, deserve answers.
In a point to Mr. Ó Foghlú, individuals have to account for their own behaviour. Given how I was treated by senior people in WIT, if I was one of those 50 people who came forward, I would be thinking if that is the way they treat a member of the Committee of Public Accounts and a TD in the constituency, it raises very serious questions. I am uncomfortable about that because it is not fair or right. Those people who work in that organisation who engaged with the process deserve a report and answers to questions that they put, be they good, bad or indifferent. I do not know what the outcome of the process will be but the process needs to be brought to a conclusion.
I meant to wish Dr. Love well earlier and express regret that he is moving on. Wherever he is headed, the best of luck. A number of things arise from our last engagement that I want to put on record.
On that specific disclosure, in June 2018, the vice-president said that the person did not engage. In October 2012, the discloser requested a meeting with the president, the vice-president and the head of faculty. The meeting took place but only with the vice-president. In November 2012, the whistleblower-discloser asked for an investigator. The vice-president did not set terms of reference and was told that that would not happen. In 2013, the discloser wrote - I have seen evidence of all of this - to the chair of the audit committee, to the president, to the chair of the Cork Institute of Technology, CIT board, requesting a dispute resolution committee, which was turned down. In 2013 also, the whistleblower went to the office and met with each of the vice-president and registrar - now the president, vice-president of strategy, head of faculty and head of school. In 2016, the whistleblower's legal firm asked twice if the CIT board was made aware of the case. There was no response to that. In 2017, the discloser wrote directly to each board member without response and in 2017 also wrote to the then and current president without response.
It is important that that account was defined as not engaging last June by the vice-president. The reason I am bringing this up is that the HEA requested a report, which will come back and feed into its own conclusions. Many people are in the same positions now, or maybe have moved up a little, as was the position as far back as 2012, most notably the chair of the board and the vice-president, who are one and the same, and the president is a former vice-president. I hope, and I am putting it to the chairman of the HEA - Dr. Love is obviously moving on but hopefully the chairman will still be with us - that when this report emerges, that the HEA's consideration of it, without prejudice to what is going to be in it, will be is tempered by the fact that many of the participants in drawing up the report may well have been associated with the subject matter of the original disclosure in 2012, and indeed that of 2017. There is the X plus one that the chairman mentioned - a disclosure could be made against me, yet I am the party that this disclosure comes to; in the context of CIT, this does not exist. It is the Department or the HEA or the HEA or the Department. This should be borne in mind, also.
I ask the chairman, Mr. Horgan to take my last comments on board on the basis that Dr. Love will be moving on, because it is important that it is reflected in the record.
Turning to Mr. Ó Foghlú, we will be coming to this matter at a meeting in our work programme; we have discussed loosely here without firming it up that we are going to invite him in again with the Department of Agriculture, Food and the Marine and the Irish Greyhound Board. The issue concerns the sale and purchase of the Harold's Cross centre for a much-needed school out there in the area, which we all support. The issue concerns two schools and the issue of price. I had the misfortune to have had some experience of valuing. Back in May I crudely put a valuation on it that was less than half of the amount paid. I queried whether a valuation was available and the Irish Greyhound Board said that it had one from Savills but would not give us the amount at the time. I speculated that it would have been very substantially less. This figure is now in the public domain and it is €11 million less. How does that happen?
This is a topic we will come back to and I thank Deputy Mac Sharry and Deputy Aylward.
We have concluded our meeting and I have found it an interesting and helpful exercise. Many members found the contributions positive and beneficial to the whole public discourse into the role, the regulation, the authority and powers of investigation of the HEA vis-à-vis the Department. In particular, I want to thank Dr. Love for coming in as I am awarehe will be leaving shortly. He has been here on a number of occasions in his short period and he has always acquitted himself in a very straight, honest and upfront manner in which he knew his job. This was greatly appreciated by our committee and we would not have asked him back if we did not consider that he had a meaningful contribution to make, which he can take as a compliment.
If we had let him slip off and said, "goodbye and good riddance," it would be different; therefore, Dr. Love should take it as a compliment that we talked to him before he left.
I thank the witnesses from the Department of Education and Skills and the Higher Education Authority for their attendance and the material provided in advance of the meeting. There is still some information to be given to us by the Department and the HEA in the coming period.
I thank Dr. Love and wish him every success in his future career.