Simon Harris (Wicklow, Fine Gael) | Oireachtas source

I assure Senator Craughwell that one of the great strengths of our sector is that there is regular, open, critical comment and dissenting views. It is one of the very healthy things about higher education and the university sector. Whether one is a university president, trade union representative or student union representative, it is a very can-do and collaborative sector, but it is also very vocal. It is a sector that quite rightly feels free to express its opinion in every and any guise. That is appropriate.

It is very important that we understand and differentiate the role of the HEA. The HEA is not the Minister, the Department or the Government, nor is it an autonomous HEI. It is a State agency of the Government, and it has a very specific job. Senator Craughwell is somebody who rightly likes to hold people to account through various committees. The line setting is very important and we must set out very clearly who does what in terms of roles. If someone has a problem with funding policy or policy in general, the conversation must be had with me. If someone has an issue with the individual running a university, that is a matter for the president and the governing authority. It is very important that there is clarity as to what I as Minister and my successors do, what the Department does, what the HEA does and where it sits in that system, and what HEIs do. What this legislation is endeavouring to do is to begin to outline and explain the role of each. That is quite a healthy thing.

I agree with Senator Malcolm Byrne, who knows the situation at first hand. The memorandum of understanding between the Department and the HEA is crucial. The HEA is an extremely important resource for the Minister, the Government, the sector and the Oireachtas in terms of the advice, research and data it can provide, but it is not the body that sets policy.That is me and the Department. That is the difference. With the amendment, if I wanted to issue a direction to the HEA then I would have to consult the board of an t-údarás. I truthfully believe that this would confuse the governance. A Minister does not need the permission of the board of an t-údarás to ask an t-údarás to do something. The board is accountable to the Minister. In practice, of course, the relationship is much more collaborative. The Minister of the day does not need to seek the permission, approval or opinion of the board of the HEA before issuing a direction to the HEA. I cannot think, in my ministerial experience, of another example where that would be the case. Would we ever ask the Minister for Health to have to meet with the HSE board before he was to ask the HSE to do something? The HEA is different here from the whole issue of autonomy around higher education institutions. The HEA is very clearly a State agency, an agency of the Government, an agency of my Department, and is responsible to me, as Minister, through the board.

I will also address some of the other amendments. I have dealt with my view in relation to amendments Nos. 45 to 47, inclusive.

On amendments Nos. 48 to 50, inclusive, section 12 provides that the Minister may issue guidelines in writing to an t-údarás for the purposes of the Act. This section also provides that the guidelines issued may relate to codes of practice for governance, other codes issued by another Minister, policy, guidance or changes. It is important that the Minister has power to issue guidance to an t-údarás.

Amendment No. 48 proposes that the HEA should be consulted on the issuing of guidelines by the Minister. The Bill currently specifies that the HEA is required to have regard to these guidelines, and it is therefore not considered necessary to specify for consultation prior to the issuing of the guidelines.

Amendment No. 49 proposes that the Minister should publish any direction issued under section 11 and any guidelines issued under section 12. Legal advice was obtained on the publication of directions issued under section 11 of the Bill. The legal advice stated that it was not appropriate to publish directions issued by the Minister.

Amendment No. 50 proposes that the Minister shall publish guidelines issued by him or her, and shall lay the guidelines before the House. It is absolutely the policy intent to publish all guidelines. They will not be very impactful if we do not publish them. These will be the guidelines for the sector. It is absolutely the intent that all guidelines will be published. By necessity they will be required to be published. A provision in section 12(2) that the Minister may publish guidelines was included following legal advice. The provision as currently written enables the publication of guidelines issued by the Minister to the HEA, as appropriate, but provides that not all guidelines would need to be published in case, for example, there was a large volume of emails and letters, etc. with regard to what becomes a guideline and what becomes legally required to be published. We will endeavour to get the balance right in that regard.

Amendment No. 51 deals with an important issue. An t-údarás absolutely needs to be free to express its views but again it is back to what is an t-údarás and what is the role of the HEA. I draw Senators' attention to the fact that in the functions of the Bill, section 9(1)(o) states that the HEA shall "advise the Minister in relation to national policy on higher education in accordance with section 14". There are numerous provisions in the Bill where the higher education institutions are consulted around higher education, including on the strategic plan, tertiary education planning, higher education, the performance framework and so on. These provisions ensure that higher education institutions are heard. The objects of the Bill include a provision that an t-údarás shall respect the academic freedom of higher education providers.

I will return to the comply and explain piece. Some amendments include proposals for provisions in section 143 to adequately explain non-compliance with guidelines, codes and policies. I have had very extensive engagement, as I am sure Senators have, with the sector in relation to this issue, specifically with the Irish Universities Association, IUA, discussing the principle of comply or explain. I have also provided a very detailed written response to the IUA on its request for further amendment outlining the details. This is why I do not believe further amendments are deemed appropriate, following legal advice. To be clear - and I have said this on Committee Stage, I have said it in Dáil Éireann and I will say it anywhere I am asked because it is the truth - the policy intent is the principle of comply or explain. I am, therefore, not proposing to make amendments to the Bill in this regard around the inclusion of a specific reference.

I consider that the Higher Education Authority Bill at present reflects the comply or explain principle and is consistent with the autonomy of higher education institutions. I sought legal advice on the issue and it has been concluded, following consideration of the advice, that it is not appropriate to make further changes. The legal advice received considers that the policy intent of comply or explain is already adequately reflected in the Bill.

It is important to note that the Bill requires the HEA to consult designated institutions of higher education or their representative bodies in preparing guidelines, codes and policies. These guidelines, codes and policies cannot just land there. There must be a consultation process with the higher education institutions. The designated institutions or their representative bodies, including the IUA, can provide observations on proposed guidelines, codes or policies when they are being prepared. They can, at this stage, provide any observations on any potential issues with compliance.

In addition, section 143(6) is a reporting provision that provides for the designated institutions to report to the HEA annually on the implementation of their guidelines, codes or practices. This is a reporting provision and provides the higher education institutions with the opportunity to explain any non-compliance to the HEA. The HEA can then have regard to that explanation. We are clear and satisfied that the policy intent on comply or explain is already reflected in the legislation as drafted.