Michael McDowell (Independent) | Oireachtas source

I agree with the Minister that where a Minister makes appointments, they are subject to retrospective scrutiny by the media and by Members of the Houses but the simple fact is once those appointments are made, they cannot be unmade unless some massive scandal has emerged and the person is removed under the statutory powers.

The context for all of this is that - I do not wish to leap ahead because I do not believe we will ever get there in any event - under section 143, the HEA is given power to: "adopt and issue guidelines, codes or policies to designated institutions of higher education for any purpose relating to this Act and concerning [among other things, the implementation of any policy or objective of the Minister or of the Government.]" The HEA can therefore give guidelines, codes or policies out in respect of Government policy.

When one looks back then to the power of the Chief Executive Officer, CEO, of the HEA under section 64, he or she is entitled:

... if he or she is of [the] opinion that there are significant concerns regarding the governance of a designated institution of higher education or the performance by such an institution of its functions or, [and this is the crucial one] compliance by it with its obligations including, but not limited to, compliance with any guidelines, codes or policies issued under section 143, [it can issue a demand, effectively, to the institution in question to comply with Government policy.]

What does that mean in terms of autonomy?

Under section 143, the Bill states that here is a code for the Government's policy, comply with it, and if you do not, the chief executive officer is going to ask you to comply with it and then, horror of horrors, he or she is entitled to threaten to cut off your funding if you do not comply with it.

The Minister may say that that is democratic because he, as Minister, can enunciate a policy and the institution is obliged to comply with the Minister's policy as enunciated. That, however, is a very significant power to be given to an institution which until now has had autonomy to say that it will not go with the Minister's policies in respect of A, B and C and is entitled, as a group, to think that the Minister is putting an overemphasis on whatever it is. I am not talking here about things like gender equality, or such issues, but I am talking about the broad frame of policy.

If a Minister of the day can lay down policy guidelines and the HEA, through its chief executive, can threaten to cut off funding for failing to comply with a ministerial policy statement, that is in fact deeply corrosive of the notion that, for example, Trinity College, with its 400 year old charter, or the National University of Ireland NUI, with its 100 plus years of independence, is obliged to so comply. It gives the Minister of the day the right to say that he or she is enunciating the policy, and is requesting the HEA's chief executive officer to call UCD, for example, to book because it is not complying with his or her policy. Then, under the Act, the Minister can have the CEO of the HEA threaten to cut off the institution's funding if it does not comply. That is what this Act is about in principle.

I have no doubt that the Minister may have very benign thoughts on this matter, but not every Minister in the future is perhaps going to take a benign view of an institution that just simply does not like his or her policies.