Alice-Mary Higgins (Independent) | Oireachtas source

I will speak to this set of amendments. This is one of the aspects of the Bill about which I have the most serious concern. It is probably one of three or four areas that I urge the Minister to address and I ask because this area creates a significant risk of overreach.These amendments relate to a requirement that occurs in multiple sections, that is, the requirement of governing authorities of universities or higher education institutions to put in place appropriate systems, procedures and practices to implement, and report on compliance with, the policies, whether set out in codes, guidelines or other documents or any combination thereof, of the Government or a Minister thereof to the extent those policies affect or relate to the functions of the university. This section would provide for a requirement of higher education institutions to implement, and report on their compliance with, policies of the Government or a Minister thereof. There would be a direct requirement for our higher education institutions to implement, and report on their compliance with, direct policies of a Minister. My amendments would confine those policies.

In Ireland, ministerial edict or a memorandum from Cabinet is not something with which bodies have to comply. We have processes whereby Ministers seek to put proposals through the legislative process, either as primary legislation or as a statutory instrument. They may be given power by the Oireachtas in regard to a policy area and the powers to regulate. Alternatively, we have the mechanisms put in place under section 143, whereby power will be given under the Bill for the Higher Education Authority board to produce codes and guidelines. They are all measures statutorily provided for in law.

This requirement, however, will not be confined. That requirement for implementation and compliance, which is being placed on our higher education institutions, will not be confined to matters set out either through law or through a decision of the HEA board. Under the Bill, as it stands, the powers will apply to any document of the Government or a Minister thereof. Indeed, it is important to note it will not solely be the Minister for Further and Higher Education, Research, Innovation and Science, who is "the Minister" referred to throughout the Bill, but rather any Minister of the Government.

I do not see what is contained in the Bill to prevent this applying to any memorandum or policy document of the Government. We know from our Constitution that the Oireachtas is the primary legislator. The Government does not get to set policy without going through this elaborate governance structure we are putting in place with the HEA or through the legislative process we have. We should not have a shortcut whereby a policy of a Minister or the Government can become something higher education institutions will be required to implement and report on their compliance with.

I do not believe this is intentional but it is significant. We have created a significant jeopardy. I have seen the Minister in many ministerial roles over the course of our time in the Oireachtas together, and I have seen many Ministers for Education come and go. As it stands, we are providing in law that a Minister of the Government, or the Government itself, could produce a policy document and there would be this requirement for persons to implement it, without it having gone through the filter of either the Oireachtas or the HEA board, as provided for in section 143. To be clear, that section is not an ameliorator of these sections, section 76 and others, because section 76 is not conditional on section 143. I believe my amendments are very constructive. I have come at the issue in a few different ways because this is a needless jeopardy. I do not believe it is one the Minister plans to exploit in some nefarious way but I believe it is open to inappropriate use and overreach. My amendments take three approaches. They are all good-faith attempts to address what I think is a serious problem with the Bill. One approach, which is similar to that which I took in the original amendment, amendment No. 111, would make it clear that the powers apply only to statutory provisions. Therefore, the higher education institutions would have to implement, and report on compliance with, policies that have a statutory basis only. Of course, that statutory basis would cover section 143 because that section will be legislation, so it would cover anything that might emerge from that section. This is probably the cleanest and best way to address the concern.

Nevertheless, I have also included proposals whereby it would apply similarly to such codes or guidelines as have been approved by the board of an t-údarás, effectively pointing to section 143. While there should be a requirement to implement and report on compliance with codes and guidelines, they should be codes and guidelines approved by the board of an t-údarás. If those codes and guidelines were approved by that board, that would mean all those due and appropriate processes set out in section 143 would have been applied to them.

A further, important amendment and concern relates to the fact that while the phrase "the Minister" is used in most places throughout the Bill, "a Minister" is used in respect of this issue of the requirement for implementation, and reporting on compliance with, his or her policies. I accept the Minister will respond by saying this applies only as those policies affect and relate to the functions of the university, but that is very wide. Of course, anything a university will be asked to do relates to the functions of a university, but the point is that individual Ministers should not be able to set policies and, unmediated by the HEA or by proper process through the Oireachtas, simply have those policies be something that individual institutions will have to comply with.

There is a severe risk of political capture and we need only to look to other countries in Europe where we have seen the overreach of governments in respect of the repression of academic freedom. With all the due regards we have, such as mechanisms and industry needs to consider, it should not be the case that the Minister for Enterprise, Trade and Employment, for example, can have a policy on what he or she wants to see coming through from a higher education institution in a way that might have an impact and whereby it might become a policy a higher education institution would have to implement or report on compliance with.

This is significant. Good intent and all of that is fine but we need to strive for legislation that is clear and copper-fastened and this legislation has been drafted in a dangerously ambiguous way that creates unnecessary and avoidable future risk. I strongly urge the Minister to take on board either the safety net of the HEA board or - I think this would be the cleanest way - my original amendment, which refers to statutory provision. The phrase, "statutory provision", does not mean it would have to be law. Rather, it would cover codes and guidelines developed under section 143. That is probably the cleanest way to address this dangerous provision. I hope the Minister will take this on board. These amendments have been made in good faith and with genuine concern.