Mr. Paul O'Toole:

In the first instance I would like to provide some general comments on the role of the Higher Education Authority in respect of sectoral governance. The HEA has a significant role in the governance and oversight of public funding provided to higher education institutions, HEIs.

In common with many areas of public administration, this role has evolved and continues to evolve, to ensure that taxpayers’ funds are utilised in a cost-effective and appropriate manner to deliver on the objectives of Government policy for the higher education sector. The HEA implements its responsibilities in this regard primarily through its governance framework for the higher education system. The framework incorporates a series of complementary measures and reports. This oversight function seeks to be respectful of institutional autonomy, but within an accountability framework.

An important development in the evolution of the HEA’s governance and oversight role and responsibilities will be the planned repeal and replacement of its foundation Act, the Higher Education Act 1971. It is expected that the new Act will provide greater clarity in respect of the extent and operation of the HEA’s responsibilities and those of the institutions themselves and the Minister for Education and Skills. Pending the enactment of the new legislation, the HEA will continue to refine and improve its system governance regime. Recent and planned actions include the development and implementation of revised codes of practice for universities and institutes of technology, the continuation of themed rolling reviews of the sector's institutions, and a follow-up report on the 2017 review of intellectual property management and conflicts of interest in partnership with Knowledge Transfer Ireland, KTI. It is important to emphasise that progress on improved governance is being achieved in conjunction with our stakeholders.

I will now refer to the handling of remuneration for certain staff in the University of Limerick and the Institute of Technology Sligo. In his response to chapter three of the Comptroller and Auditor General’s report, the Secretary General of the Department of Education and Skills indicated that the Department and the HEA will work together to examine the matters raised and will ensure corrective action is taken. The HEA is working with the Department in this regard and is continuing to engage with the University of Limerick on these matters. Further details can be provided to the committee as required.

Recommendation 5.2 was that, "The HEA should review payments described as sabbatical leave across the sector to ascertain if similar control weaknesses are happening elsewhere." As part of its governance framework for the higher education system, the HEA has commissioned a review of pay and related practices in higher education institutions ,HEIs, including the matter of sabbatical leave. The fieldwork in seven institutions is under way and a report is expected in the second quarter of this year. Based on this report, the HEA will consider the extension of this review to other institutions.

With regard to other matters in respect of the University of Limerick, UL, the HEA continues to monitor progress on the implementation by the university of the recommendations of the Thorn report. The latest report from UL in respect of the period ending 31 December 2018 indicates that the university has implemented nine of the ten recommendations, with the remaining recommendation in progress. The university has also reported that 35 of the 42 recommendations arising from its internal review of procedures are completed, with the remaining seven in progress. The HEA will continue to monitor the situation and, in conjunction with the annual governance statement of UL to be provided by 31 March of this year and the HEA’s rolling review programme, we will work with UL to ensure robust governance polices and practice are in place.

I will now move on to the issue of Waterford Institute of Technology and the development and disposal of intellectual property in FeedHenry. I will initially update the committee in respect of actions arising from the Comptroller and Auditor General’s report and then provide updates on the review being carried out by the HEA itself.

I will begin with progress on implementing the recommendations to the HEA in special report No. 104 of the Comptroller and Auditor General. Recommendation 2.2 was that "The HEA should require as part of the governance statements that HEIs submit a schedule of all their disposals and the consideration received." This recommendation has been implemented and the schedule is being sought from HEIs, commencing with the period 2017 to 2018.

Recommendation 3.4 was that "The HEA should ensure that HEIs have clear and consistent policies on when a full-time staff member at a HEI may directly receive equity from a spin-out." This recommendation has been incorporated into a new intellectual property protocol developed by KTI in consultation with the HEA. The new protocol is being submitted to the Minister for Business, Enterprise and Innovation for approval.

Recommendation 3.5 was that "The HEA should ensure that HEIs have policies in place to ensure that staff involved in negotiating the sale of valuable IP do not have a reporting relationship and are not subject to direction by an interested party." This recommendation is being incorporated into both the new IP protocol mentioned earlier and the revised annual governance statements to be completed by higher education institutions, HEIs.

Recommendation 4.3 was that "The HEA should ensure that HEIs’ policies on creator reward schemes take account of potential situations where HEI staff have a financial interest in a company acquiring IP." As with the earlier recommendations, this recommendation is being incorporated into both the new IP protocol and the revised annual governance statements to be completed by HEIs.

I will now move on to the independent review of the spin-out and sale of companies from the telecommunications software and systems group, TSSG, at Waterford Institute of Technology. This review has been discussed previously by the Committee of Public Accounts. Arising from this, the committee will be aware that the HEA commissioned this review and that a draft report was prepared. Subsequently, the HEA sought general legal advice as to its powers to conduct reviews of this nature. In turn, the Department of Education and Skills sought advice from the Attorney General on the general powers of the HEA in respect of conducting reviews on a broader basis. The Department of Education and Skills wrote to the committee on 18 December 2018 in this regard. On receipt of a letter from the Department of Education and Skills on 7 December 2018 in respect of the advice of the Attorney General, the HEA has in turn sought further legal advice. Our legal advisers considered the specific nature of the Waterford Institute of Technology review in light of the advice received from the Attorney General and the previous legal advice provided.

While this matter falls to be considered further by the board of the HEA at its meeting next week, it is important to take this opportunity to provide the committee with a summary of the advice received. In short, our legal advice is that the HEA does not have the power to conduct reviews or investigations of the specific nature of the one that was under way in respect of Waterford Institute of Technology. This is regrettable as the clear intent of the HEA, as stated in evidence to this committee, was to bring this review to a conclusion and publish its report. Nevertheless, the advice provided to the HEA makes it clear that this is not possible. As I have indicated, the matter will be considered at the meeting of the board of the HEA next week, including a consideration of the next steps. In this regard, it will be important to ensure that the HEA communicates with each of the approximately 50 people who contributed to the review and to whom we are grateful for their input.

Notwithstanding that this specific review cannot be completed, the HEA intends to continue its work with Knowledge Transfer Ireland and the higher education institutions to ensure that robust polices are in place and are being implemented. In line with the recommendations of the Comptroller and Auditor General, this work is well under way with specific new reporting requirements in place for HEIs reporting in their annual governance statements, a revised IP protocol at approval stage, and a review of the updated requirements for HEIs to be undertaken by the HEA in 2019.