Rose Conway-Walsh (Mayo, Sinn Fein)
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It is clear from section 126 that the HEA may issue guidelines, codes and policies concerning any matter referred to in this Act or any other enactment and the implementation of any policy or objective of the Minister or the Government. In effect, this means policies and objectives of the Minister and the Government become legally enforceable without being enacted in the form of legislation. It is proposed that compliance with guidelines, codes and policies should be assessed by reference to the principle of "comply or explain". This approach would serve to restore the balance between autonomy and accountability and is an approach that is proportionate in circumstances. Any policy or objective of the Minister can become the subject of a guideline, code or policy. Non-compliance can lead to direct intervention by the HEA and the imposition of financial penalties under section 42 and determinations for action under section 65. This has the potential to undermine the autonomy of the university governing authorities and it potentially increases risk of third level institutions being regarded as being under public control.

The "comply or explain" principle operates on the basis that the entities at which the legislation is directed should not favour strict compliance over effective governance and transparency. Instead, the entities at which the legislation is directed are encouraged to consider their individual circumstances carefully and choose what is best for them while ensuring they provide full, clear and meaningful explanations for departures from what is expected of them under the guidelines, codes and policies. This allows entities to develop governance, processes and practices most suitable for their particular circumstances and to report them in a meaningful way rather than declaring strict compliance with the guidelines, codes and policies that result in reporting that lack of substance and information about governance outcomes. The "comply or explain" principle seems particularly appropriate in the current context where the circumstances affecting each designated institution of higher education tend to be quite different.