Simon Harris (Wicklow, Fine Gael) | Oireachtas source

I would like to explain why I do not propose to accept the amendments in this grouping. I am not proposing to make amendments to the Bill around the inclusion of a specific reference to the comply-or-explain principle or references to the provision of an adequate explanation for non-compliance. It is considered that the Higher Education Authority Bill 2022 at present reflects the comply-or-explain principle and is consistent with the autonomy of higher education institutions. The departmental policy intent is that of the principle of comply-or-explain. This issue received a good airing on Committee Stage. Legal advice has been sought on the issue and it has been concluded, following consideration of this advice, that it is not appropriate to make the changes as requested. The legal advice received from the Office of the Attorney General considers that the policy intent of comply-or-explain is adequately reflected in the Bill as currently drafted.

It is important to note that the Bill requires the HEA to consult designated institutions of higher education or the representative bodies in preparing guidelines codes or policies under section 139 of the Bill.

The designated institutions or their representative bodies, including the Irish Universities Association, can provide their observations on the proposed guidelines, codes or policies when they are being prepared and they can, at this stage, provide any observations on potential issues with compliance. That is worth noting.

Section 139(6) is a reporting provision and provides for the designated institutions to report to the HEA annually on the implementation of their guidelines, codes and policies. This reporting provision provides the HEI with an opportunity to explain any non-compliance to the HEA and for the HEA to have regard to that explanation. It is a matter for the HEA as an independent statutory body to assess the practicality of a proposed guideline, code or policy, having consulted the institutions as necessary, and to assess whether a specific institution has a valid reason for not being in compliance and whether further action is required. The HEA will be bound by constitutional fair procedures in adopting such policies and in its engagement with such institutions.

We made two amendments on Committee Stage to address concerns relating to autonomy and compliance with guidelines, codes or policies. We added to section 64(1) of the Bill, which is the section on the review of a matter and reporting to an t-údarás. We deleted the words "concerned about" and added the words "of opinion that there are significant concerns regarding". That was a strengthening or increasing of the threshold. We also amended section 76(a)(1A)(b)(iii) of the Bill by deleting the phrase "enable compliance with the policies" and replacing it with "implement, and report on compliance with, the policies".

The key points of the legal advice received are clear. This Bill already requires an t-údarás to consult designated institutions or their representative bodies. There is a reporting provision in section 139(6). It is an independent statutory body and the institutions have access to other legal remedies if they object. The clear legal advice available to me after reflecting on this matter between Committee Stage and Report Stage is not to make these specific amendments relating to compliance or explaining.

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