Wednesday, 6 July 2022
Higher Education Authority Bill 2022: Committee Stage (Resumed)
The Minister is dead right as anybody who was appointed to a board in this country is subject to scrutiny from either within this House, the Lower House or anywhere else one may wish to mention in society in general. I wish to put on the record, however, that chairpersons of boards are frequently brought in before Oireachtas committees and we have absolutely no say in whether their appointment is sanctioned or not. It is purely a "hello, nice to meet you" meeting. I have stated at committees on a number of occasions that it is a waste of both the board chairperson's and the committee's time. We do not scrutinise the people who are appointed by Ministers.
I fully appreciate the role of the Minister in making appointments but this House and the Dáil has a role in overseeing the work of the Minister. Where we cannot do that, there is a flaw, and that flaw does not just exist in this Bill, but it is in the system right across the Oireachtas. A Minister makes an appointment and no matter how repugnant to the public that appointment may be, nobody other than the Minister of the day can change that.
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.
I make the point that we are talking about fully preserving autonomy but we are also giving the Minister for Further and Higher Education, Research, Innovation and Science the right to enunciate policy and are giving the HEA the right to cut off funding for people who do not comply with the Minister's policies. I find that that is not consistent with what I used to believe was university autonomy.
There is a misrepresentation around this piece of legislation that it safeguards academic autonomy. This is not a piece of legislation that has anything to do with academic autonomy and there are specific safeguards built into legislation around this. This is to do with questions around governance and financial accountability.
Yes, we will come to the Comptroller and Auditor General because I want to speak directly to the point raised by Senator Higgins that this gives more power to the HEA. It does. Part of the reason this legislation had to come about was because of incidents at the University of Limerick, UL, where serious questions were being asked about where money was being spent. UL was using the autonomy line and that essentially there was nothing to see here even though-----
This issue came extensively before the Committee of Public Accounts, and so on, at the time. I fully respect the academic autonomy of institutions, but we also expect that in respect of the very considerable sums of moneys that are made available to them by the State, that those institutions are accountable for these sums. I am particularly glad, incidentally, that the Minister is also addressing now the core funding issue. When the issues in respect of UL arose - there were other institutions involved also, and this is not just to single UL out - we, as a State were not able to get the necessary level of accountability concerned. The only options that were available, quite frequently, to the HEA under the old legislation was to send in a visitor. This was, essentially, to disband the governing body, to move in, and to press the nuclear button.
This legislation is about ensuring that there is accountability for the taxpayers' money that goes into the universities. We can have debates around the necessary safeguards which have to be put in place because I know that we have talked about conferring too much power on the chief executive of the HEA.We had some discussion of that principle on Second Stage. There have to be checks and balances in that regard. However, where there are checks and balances, because the Minister is democratically accountable to these Houses, the chief executive of the HEA is the Accounting Officer to the Minister. The HEA has to have a certain level of power with regard to the State investment that goes in to the institutions.
With respect to Senator McDowell, the Minister will not determine the academic policies of any institution. I would completely oppose this legislation if any such measure were in it. This is why it was considered in detail. Amendments were tabled in the Dáil to strengthen this. I am certain that no Minister or Government would allow for that in the Bill, especially when we are pointing the finger at countries such as Hungary. The safeguards are in the legislation.
Those of us who have been involved in the process for a long time know that this is about financial accountability and governance. We need to understand that it has nothing to do with the question of academic autonomy, which must be protected. It is important that we ensure there are people in the authority with academic experience and, equally, that people outside of academia are appointed. Ministers do not always get appointments right. Senator Hoey might remember that one of the appointments to the board of the HEA by the Minister's predecessor, Deputy Bruton, was Mr. Paddy Cosgrave, who famously made a number of comments about academic achievement. It would be fair to say that the Minister and Mr. Cosgrave would not be good friends.
If we are to speak specifically with regard to the authority and this amendment, it should be about its members having sufficient experience to inform the decision-making processes and meet the strategic objectives of the authority, rather than them all being representative.
My colleague, Senator Malcolm Byrne, made reference to how many inputs I made to pre-legislative scrutiny. I sit on two extremely busy committees, the Joint Committee on Foreign Affairs and Defence and the Joint Committee on Transport and Communications. I was also sitting on the Joint Committee on Public Petitions at the time, as well as conducting normal day-to-day business. I did not have any input in pre-legislative scrutiny in this area, as I am sure Senator Byrne does not have an input in foreign affairs, transport or some of the other areas. That does not preclude me from taking on board advice given to me by academics, members of trade unions and those who appeared before the very committee the Senator spoke about to try to have included in the legislation issues such as that addressed by Senator McDowell some time ago, namely, the overarching power of the chief executive officer, without any reference to his or her board, with respect to sanctions.
I made the point, as a former president of a trade union, that there should be provision to have academic representation from IFUT or the TUI. It works very well on the Teaching Council and I do not see any reason it would not work on this authority. I have every faith in the Minister. I have supported him in public on many of the things he has done. He is far-sighted and has ambition for higher and further education in this country, the like of which I have not seen before. I compliment him on that. However, the Minister will leave office at some stage and another Minister will be appointed who may not be the same type of person or may not hold the same principles as he does. What we are trying to do here is to define for the next Minister precisely what should be in this legislation.
The only issue on which I differ slightly with Senator Norris is on the academic experts or members. They should be drawn from IFUT or TUI, which are the main trade unions represented in the higher and further education sector. From that point of view, that is the argument I am making. We will not reach an amendment about having local authority members represented on the various boards included in this Bill. I will not take away from the considerable work done on this Bill but, at the end of day, there is a reasonable argument for this and it is not a lot to ask that it be taken on board.
I will address some of the comments on this amendment. The purpose of the Bill is to fund a greater number of students to access third level through traditional universities but also our brand new technological universities. As a democratic state, we need to ensure funding is equally dispersed and managed throughout all of our institutions. The chief executive of the HEA will be responsible to the board of the HEA and is the person responsible for the funding. He or she is making the funding allocations, on behalf of the HEA, to each of these institutions and is responsible for those funding announcements and decisions. As such, if the chief executive then identifies that there are issues with funding, it is within his or her remit to follow up on that.
The HEA puts policies together but there is engagement at a very early stage with the other departments and higher education institutions throughout the country. There is engagement with and on these policies prior to their final development. This ensures there is engagement with all stakeholders. It is crucial that we hear those voices at every stage. These policies are to benefit all in society, ensure we have more people accessing third level and coming through further and higher education and achieve the excellence we want to see at third level. That is what this Bill will achieve.
I will speak to amendment No. 317, for which I am responsible, and make a few points with regard to what has already been said. I remember when I was in student politics in Galway. I was elected president of the students' union there in 1991. It was for the Minister of the day to officially approve my appointment to the governing body of UCG, as it was. I remember these things took time. As sabbatical officers came and went, year in, year out, it was not always the case that the minute people were elected, their membership of the board of governors of the governing body would be ratified. The problem with that was dealt with by the governing body admitting me as a non-voting member until such time as the Minister of the day would ratify me. I cannot remember whether it was Noel Davern or Mary O'Rourke who was the Minister at the time. It was just as well that I was allowed to attend meetings because the Minister never got around to ratifying me during the course of the year. I remember, on one occasion, having completely forgotten about the matter and when I went to vote on an amendment or a point on which a vote was called by the governing body, I put up my hand. The then runaí um ghnóthaí acadúla, the secretary for academic affairs, brought me down with a bang and said that the vote was 24, instead of 25, agus nach raibh an tUasal Ó Maoláin ceadaithe go fóill.
I understand and respect the importance of student representation on important bodies and, therefore, I understand why the legislation makes specific reference to the appointment of student representation to an t-údarás. However, it highlights the distinct oddness of the absence of a specific reference to academic representation on an t-údarás. It is fine for the Minister to say this is because this is a competency-based body rather than a representative body. I believe that is the gist of his rationale for this exclusion. Does one infer from that, therefore, that it would not be enough protection for student representation to leave it to the Minister to judge that in appointing a competency-based body, it would be necessary to have student representation?It seems to me that there is an element of sauce for the goose and sauce for the gander to this. Students are stakeholders with competency to participate in a board of governors of an t-údarás, the HEA or a university or designated institution, as are academics. We can all see how any test of competency, to have all the necessary skills and perspectives under the heading of "competence" for such a board, would require student and academic representation. The fact is that the Minister has chosen to specifically reference student representation but not academic representation. He cannot explain away that anomaly by referring to the fact that it is the responsibility of the Minister to make competency based appointments and imply that academics will, of course, be a part of that. It is not sufficient to imply it when the Minister specified another category, as he did with students, in another part of the Bill.
On that very subject, I am reminded of Ronald Reagan's phrase to Mikhail Gorbachev; "Let me tell you why we don't trust you". The Minister talks about competency based bodies but I refer to the very point that Senator McDowell raised, which is the non-amenability of the CEO to the board of an t-údarás regarding certain very serious decisions the CEO may have to make. The CEO is amenable and requires the approval of the board of an t-údarás in certain decisions on compliance and measures, "remedial and other measures" is the phrase used in the Bill, that may have to be taken but not in others.
The problem that many universities have with this is that if one is serious about competence being the hallmark and criterion for the appointment of people to the boards of universities, as well as the board of an t-údarás, one must recognise that if people are being put into a position of competence, their competence to govern has to be respected. If they choose to depart from a prescribed guideline, code or policy, if one is to get the balance right in the context of universities as State-funded and State-recognised institutions, but nonetheless independent of the State, one must respect what it means to appoint a competency based board. It means the presumption is that if they have a reason to depart from a particular code, guideline or policy and explain it, that that is a desirable approach. It is not as though there is no further measure open to the HEA if the explanation is unsatisfactory or the problem persists.
The other problem is that universities believe the actual competence of the board of governors is not being respected. They believe respect for their competence would mean that in the decision of a university to sanction or perform remedial or other such measures arising out of actions or failures to act, as seen by the CEO, they should be accountable to decisions that are themselves subject to the approval of a board. In other words, they believe that if a competent board, to whom a president of a university is ultimately responsible, backs the president and the administration of the university in making particular decisions, respect for their competence in getting the structures of all of this right would mean that any decisions, which seek to remedy the situation or intervene, involving serious decisions about the freezing or withholding of funding, because the Minister is insisting in putting competence based boards in place at university level, any decisions to intervene on the recommendation of the CEO of an t-údarás, should by definition be precisely that. They should be decisions on the recommendations of the CEO but approved by the board. The board should be somehow held accountable, ultimately, not by an individual but by another board.
To the argument that the CEO is somehow the Accounting Officer to the Comptroller and Auditor General, or that the CEO is the man or woman in the spot, the fact that the CEO would have to get board approval for a decision in no way takes from the CEO's accountability or legal position of accountability. People come before Oireachtas committees all the time and have to account for their role, decisions and stewardship. It does not mean that the decisions they take are somehow decisions that they are empowered to take completely independently. They are decisions they take because they have boards to which they are accountable.
The Minister has presented the argument - a slippery argument which I ultimately do not believe is valid - that the reason he is not requiring that CEOs be accountable to the board of an t-údarás for certain key and serious actions they want to take in universities, is that somehow it is because they are the person in the accountable spot that justifies him or her not being required to have the approval of the board of an t-údarás. That argument makes no sense. People who are accountable in law for whatever function they hold, in most cases that I can think of, are still accountable to the boards that are behind them. That does not speak to the specific amendment but it does relate to the issue of a competency based board. There is a problem in that aspects of the Bill do not seem to respect the competence and appropriate zone of action of individual universities and governors that hold them to account.
On the subject of amendment No. 317-----
How can we believe the Minister when, last week, no one was left in any doubt that he fully supported thorough scrutiny of the many amendments that have been carefully prepared on foot of consultation and contact between Members and legitimate stakeholders? According to his explanation today, he is allowing a process to go ahead without protest that will see the Bill guillotined after a few, very short hours of scrutiny.
I am all for letting Senators speak as much as possible, but let us get through some of the amendments and afford as much time to as many Senator to participate in the debate and go through as many amendments as possible.
I will be very brief because I am keen to move to the next grouping in which I have a number of amendments relating to equality. In response to the debate, I wish to correct two points that were made. First, it was suggested that the measures being put forward relate to governance and finance solely.The other suggestion is that any policies that might be relevant will be developed with the Higher Education Authority, or an t-údarás.
In this Bill, in sections 76, 119 and, I think, in another section, there are extremely strong powers in relation to policies that are not confined to the issues of finance or governance. In fact, there is a requirement by governing authorities to put in place measures to implement and report on compliance with the policies that may be set out in codes, guidelines or other documents, such as memos, circulars etc., of the Government or of a Minister of Government to the extent that those policies affect or relate to the functions of universities. Just to be very clear, there are measures in this Bill requiring governing authorities of universities to implement and be compliant with polices set out in codes, guidelines and other documents of the Government or a Minister. In that regard, it is quite a wide reach. It is not clear.
There will be opportunities when we come to debate sections 76, 119 and others where we have amendments where we seek to limit it so that it would be compliant with statutory requirements. I know there are amendments we may table, given the subject matter of this, which is the academic issue, and I am expecting there would be support from Government Senators for this, specifically to preclude that there would be any such requirement for compliance with any policies that relate to academic matters. Perhaps we can address those when we come to them in sections 76, 119 and others, but we need to be very clear these are not solely matters of governance and finance. There is quite wide language in terms of policy in this Bill in relation to the expectations on governing authorities of universities.
I am happy to leave it there because I do not want to talk longer. I want to get to the next grouping, which are important amendments around the issue of equality.
I want to come back on the issue of academic autonomy and on the comments I have heard from Senators here. Autonomy is protected, but autonomy cannot be used as a fig leaf or a catch-all word to cover other issues that are of legitimate importance, such as in relation to governance, accountability and in relation to an education system that advances the delivery of public policy.
I attended a very good debate in this House, led by Senator Ruane, on the issue of non-disclosure agreements, NDAs. During that debate, I specifically referenced this legislation and the ability of the HEA to set guidelines, codes and practices on a number of areas, including, in the context of that debate, the issue of NDAs.
We have had reports from the Committee on Public Accounts, such as the report from 2017, which calls for legislation just like this. There some Senators, including my good friend Senator Craughwell, would rightly be jumping up and down about many issues if he felt there were concerns about the expenditure of public money and he did not feel the response was robust enough. He would probably be trying to hold people like me to account for this. You can only hold people like me to account and the HEA and others if there are enough levers, clarity and structures in place in terms of accountability.
My job is not just to write the cheque on behalf of the taxpayer. That would be a very simple job. My job is not just to say, “Here is the cheque; here is the money; go off and spend it how you wish”. This is €2 billion of taxpayers’ money. When we are consulting all these stakeholders, whom I know very well, respect them and consult them regularly, there is another very important stakeholder here and that is the citizen, the person, the taxpayer. Their voice is not being heard enough in this debate. This debate is hearing the voices of representative groups, which is perfectly fine and legitimate. I meet them too and I have no issue with that, but there is also the citizen. I believe it is right and proper we put a HEA in place that has a competency-based board and that can set codes, guidelines and policies. I do think there is a link between public funding and public policy. That is not a revolutionary concept.
Senator Norris can keep on making that point about experience in higher education and the Minister. The man who is sitting beside Senator Norris was the Minister for Justice. He never wore a Garda uniform and he was a perfectly fine Minister for Justice. This idea-----
However, I do think it is an important point. The other point I want to make relates to the issue of the CEO of the HEA. I believe sometimes there is an issue with picking pieces of the legislation and reading them in isolation. I do not think that is a useful thing to do. The CEO of the HEA, as Senator Mullen pointed out, is always accountable to the board. There are certain things which the CEO will need the explicit approval of the board to do, but even in the areas where explicit approval is not needed, every CEO of every organisation is always accountable to the board. The CEO, though, cannot just be the convenor of the board meeting. It cannot just be the CEO’s job to convene a board meeting. The CEO has executive powers in relation to arrangements. I am sure we will debate where there is an appropriate division-----
Hold on a second. When I chair the Seanad I try to be fair to everybody. Let us take the tone down a little bit. There are two other speakers, Senators Ruane and Craughwell, who would like to come in after the Minister. Let us not interrupt the Minister. Let him finish his point and then we can get on to the two other Senators, if that is fair enough.
We are engaging in good faith. I made myself available as the Seanad ordered its business. On Senator Craughwell’s point on the TUI and the issue of full representation, and I accept his bona fides as well as his long, distinguished relationship with the TUI, we have made progress on representation on governing authority boards. That was warmly welcomed at the TUI congress in Wexford. It was something it had sought for a long time.
We are making a different and distinct point in relation to the HEA board, because if there is a seat here and a seat there, it very quickly becomes a representational board rather than a competency-based board. However, I accept, and there is no point in being disingenuous on my part, that it could be presented as an anomaly. I have made a conscious decision to put a seat in place for students on the board of an t-údarás. Beyond that, we have not done so for any other representative group, and a compelling case could be made for many. Beyond that, we have decided to go through the normal public appointment process, which is competency-based. I think and hope that is the correct balance.
As it was brought up in reference to the Employment Equality (Amendment) (Non-Disclosure Agreements) Bill, which has been very well-supported by the Minister and by the Government and will be so again this evening, I wish to point out one slight difference in that the NDA Bill is legislation that will apply to all citizens, and I know that is an intersection with policy, whereas the reference Senator Higgins made was to policies, which can change from Government to Government and Minister to Minister. Even though law and policy intersect, they are very different. The NDA Bill would be law, and what we are referencing is the overreach in terms of potential policy areas different Governments may take on. That is to clarify and put on the record the difference between the two.
The Minister is dead right. If I saw something going wrong, I would hold the Department in question to account. I have been trying to do that for the past two years with another Department and getting nowhere. In fact, the worst thing that ever happened to this country was the Ministers and Secretaries Act 1924, where the Minister takes the fall but somebody else does the deed. That is the way I feel about it.
With respect to the Minister’s comment on us representing pressure groups or groups with specific interests, I have not been contacted by either IFUT or the TUI. It is in my DNA to question that. I have had two amendments provided to me by the Irish Universities Association, which thought it had a deal with the Minister on those two amendments, one of which relates to the CEO’s powers. The other amendments and contacts I have had have been from citizens, some of whom are sitting in the Gallery.
-----who expect he will not write that cheque without having proper governance in place.At the end of the day, even pressure groups that contact us are citizens with a specific interest; I will accept that. I will put on the record today that I attended the TUI conference where the Minister was hailed as a hero by many; he really impressed them all. I hope they will still be as impressed when this Bill passes.
My final point is that it is within the Minister's gift today to say he does not like the pace at which this Bill is going through and to ask whether the Leader could come to the House, amend the Order of Business and lift the guillotine.
Again, I speak in support. As the Minister knows, Senator Craughwell was at the TUI conference. In terms of what the Minister has done with governing bodies, it is about ensuring that the academic and non-academic staff are represented on governing authorities.
I find what Senator Higgins said about public policy and giving the Minister more powers kind of unusual. Yet, most of the amendment she tabled are on specific areas of public policy. It is around expecting an t-údarás and the universities to adhere to requirements around the sustainable development goals, SDG, and climate. Indeed, one of the areas in which the Minister has been to the fore has been addressing questions of gender equity within higher education.
These are public policy decisions; they are not to do with academic freedom. It has no impact on what a lecturer in medicine can teach or on a business studies lecturer's approach or philosophy. Indeed, as we know, where we saw the problems with some prominent academics who, for instance, preached an anti-vaccination message in institutions, their academic freedom had to be respected. The State criticised but did not seek to interfere with institutions in that regard. On matters of public policy where we as citizens are contributing in a particular way, however, we expect a response. That is why the legislation is correct. I find it somehow odd that Senator Higgins is almost arguing against giving the Minister and the authority-----
I am. Here is the point around this. That is all fine; it is around the principle that if we put them into legislation and they form part of public policy, then there is an expectation that the Minister and an t-údarás will ensure that action is taken on them. If there is not action taken on them by the universities and an t-údarás, what should the Minister do? Should the Minister just say this institution is doing nothing to further SDG goals or gender quality and that he must respect the autonomy of the institution and not do anything?
In fairness to the Minister, there have been a number of key areas. I will instance the question of gender equity, which he and his predecessor, Ms Mary Mitchell O'Connor, have pushed quite strongly. They are positive examples of where public policy must be followed. It is key with this legislation. That is why we should stick to what we are talking about. Confusion is being deliberately perpetrated that this impacts on academic freedom; it does not.
I move amendment No. 3:
In page 13, line 18, after “disadvantaged,” to insert “persons to whom the Equal Status Acts 2000 to 2018 apply to,”.
These amendments all relate to issues of equality. It gives me a useful opportunity, therefore, to clarify the points that were made previously. I am not against public policy existing but to be very clear, and I was clear in my intervention that my concerns are that there are requirements in the Bill for governing bodies of universities and individual institutions to implement and report on their compliance with policies of the Government or a Minister of the Government. Again, those are not policies that have become full public policy by means of either statute, regulation or law or, indeed, that have been agreed by the Oireachtas or the HEA. We all have policies we might put in our manifestos. Ministers may have policies and Government may have policy but the muddying of the line between public policy and Government policy is an issue on which we need to be clear.
I was specifically clear that I will have amendments that say they may have mechanisms in terms of compliance with matters of statute, that is, regulations that are in place on a statutory basis, laws that are put into place, laws on non-disclosure agreements, NDA, which I hope will be law soon or, indeed, such measures as I propose putting into law here. I am clear on the policies I think should become law and be given a statutory basis and should, therefore, then be matters that are appropriately enforceable. I am not okay with a blank cheque whereby any future Government's or future Minister's policy should automatically become something that on which an HEI must implement a report. That is what provisions in sections 76 and 119 say at the moment. I will propose amendments to them saying that there are many areas in which we should have more laws and clearer laws, including areas such as equality. They should be done in a proper way by law, however, and that is what should be indicated.
I will discuss the amendments in the grouping, all of which relate to the question of equality. Amendment No. 3 seeks to amend the definition of "priority groups" in the interpretations section and proposes to insert “persons to whom the Equal Status Acts 2000 to 2018 apply to”. Currently, the definition of "priority groups" mentions "persons who are economically or socially disadvantaged, persons who have a disability or persons from sections of society that are under-represented in the student body in higher education". It is important to be clear and to include those to whom the discrimination grounds in our Equal Status Acts apply, many of whom, in fact, are under-represented or even if they are represented, face particular obstacles in terms of their access to higher education. Those include, for example, the grounds in the equality Act relating to things such as gender, marital status, family status, religious beliefs, age, disability, race and membership of the Traveller community. The current wording is quite narrow and does not specifically name many of the grounds that have historically been sources of exclusion such as, for example, race, family status, sexual orientation, members of the Traveller community who have experienced particular exclusion and, indeed, lone parents who face particular obstacles. Again, it is an attempt to widen who might be captured in the definition of "priority groups" and ensure that those groups, which have been acknowledged by the Equal Status Acts to have experienced discrimination across society, are not forgotten in the definition.
Amendment No. 156 would amend section 34(3) by providing that in the ongoing review of the demand for higher education in the State, an t-údarás would have regard to "the needs of society to address issues of poverty, social and economic inequality, racial inequalities and inequities and gender inequalities and inequities” in assessing the demand for higher education at a regional and national level in each discipline.
Amendments Nos. 212 and 214 relate to the equality statement provision under section 62 of the Equal Status Acts and suggest that in preparing the equality statement, the designated higher education institutions should consult with representative organisations of those to whom the Equal Status Acts apply. Examples of such groups are the Irish Traveller Movement, Pavee Point, the Disability Federation of Ireland or, indeed, many of the disabled persons organisations in the State, Social Justice Ireland, Movement of Asylum Seekers in Ireland, MASI, and others.
Amendment No. 214 seeks to inert the word "equity" in section 62(5)(b), which currently provides that an equality statement of a designated institution of higher education to which the section applies shall specify the policy of the institution on equality in all activities of the institution.This amendment simply refers to equity. There is another point in the Bill where there is a reference to equality of opportunity, which is not the same as equality of outcomes or equality in its wider sense, so this is an attempt to add "equity" and thereby strengthen what we mean by equality. We are not going for a minimalist version. I know that is not the intention in the equality statement but elsewhere in the Bill equality of opportunity is referenced, which I believe is needlessly narrow and which I will seek to amend. These amendments all seek to give strength to the legislative provisions in respect of equality and equality statements in the Bill.
Senator Higgins covered a lot of the amendments but I will pick up on the last point. The difference between equity and equality is a crucial conversation. Equality of opportunity means, for example, everybody has the right to apply to Trinity College Dublin. The equality of opportunity exists for everyone, but obviously that is not true. Equity is a much more targeted, aggressive approach to addressing the inequalities that exist in society by taking account of the inequality in a person's environment, background, class or race, whatever that may be. Equity has much more of an agenda in really addressing many of the issues that will arise. Even with regard to the first amendment relating to the Equal Status Acts, when we look at the different groups that are under-represented the last word change in terms of adding "equity" under amendment No. 214 in section 62(5)(b) would go a long way in strengthening the language in the Bill.
I am speaking to amendment No. 317, which proposes to amend section 129, which relates to the equality statement of the college. However, this part of the Bill relates to the National College of Art and Design, NCAD. My error was in tabling the amendment to that section when it should more properly have been proposed to section 62.
On the principle of the amendment, in the context of the preparation of an equality statement, a number of different requirements are made of a designated institution of higher education. There is an onus on such an institution to prepare an equality statement. This involves the preparation of a statement of the policy of the institution for enabling access to it and to the education it provides by students in priority groups and persons in those groups who seek to become students and a statement on the policy of the institution relating to equality, including gender equality, in all activities of the institution. In addition, section 62(5)(c) refers to "the manner in which the plan relates to any strategic development plan under section 61" and so on.
I wish the Minister to consider the inclusion among these requirements of a requirement for the equality statement to address the policy of the college relating to respect for the academic freedom of students of that college. That is a core issue in respect of equality. I apologise for my mistake, which was to propose the amendment of a section that deals only with NCAD. It is of course my intention that the requirement to prepare a policy on the academic freedom of students would apply to all designated institutions. I believe the Minister will agree that the principle is the same and that it could be addressed. I hope he will agree with me. I am happy to submit a revised amendment on Report Stage and I would be even more happy to withdraw in anticipation of the Government introducing an amendment of its own on this matter on Report Stage.
Why am I proposing this amendment? We talk about the importance of academic freedom. Academic freedom as generally understood in an academic context is not just a matter of equality. Academic freedom goes to the integrity of universities and institutes of higher education. It is part of the secret sauce of an institute of higher education. It is what makes possible the exploration of ideas and an expansive approach to research in all areas, not just in the humanities. We know that the curtailment of academic freedom is a recipe for disaster where it occurs. This issue has many dimensions and there are other aspects we might rightly consider in the context of other legislation. For example, a matter of major concern to people is the implications not just for academic freedom, but for human rights.Academic freedom is part of that and separate from that in the context of the connections between institutions of higher education and countries such as China. One thinks of the influence of the Confucius Institutes, as well as the joint college arrangements that have been embarked on and the joint delivery of academic courses between Irish colleges and colleges in countries such as China. When one also considers the surveillance state that China is, one must surely have questions about the risks to academic freedom inherent in those links. The links might be welcome for all sorts of reasons but there are inherent risks to academic freedom where one is dealing with institutions that are, in one way or another, under the control of a surveillance State.
What happens to a student who comes here and wants to write a thesis about democracy and the problems with the Chinese system? To what extent are the academic freedom, human rights, welfare and safety of such a student or indeed a member of academic staff who comes from a country like that to work here compromised? That is just one example. That is just one of the issues that are coming up around academic freedom these days. The issue is broader and more general than that. It touches on the capacity of an institute of higher education to be the best it can be, to give access to all areas in terms of the exploration and development of ideas, theories and so on.
The key point is that academic freedom cannot be just understood in the context of equality, although there is an equality dimension to it. Nor can it be understood just as an issue that applies to academics or the paid staff of the university. Increasingly, we live in a world where institutes are highly politicised and students can come under various different kinds of pressure not to think certain thoughts or develop certain ideas and not to go there on certain issues, whether it is the Chinese Government and its attitude to some of the course content or some of the proposed research areas undertaken by a Chinese student who is based in Ireland, for example, or whether it is a student who feels inhibited from getting into an area of sociology, politics or whatever other discipline it may be because it might incur the displeasure of college authorities, academic authorities or the people to whom they have to submit their work for assessment.
We read in these days about the apparent lack of academic freedom that is going on in the western world and the shouting down of academics and other students by people. When we read about that - thankfully, we have generally come across this in other countries so far - we know that something antithetical to the idea of a university is going on. University must surely be the place where people come up with ideas and where people are free to explore ideas. They may be unpopular ideas. They may go against the grain of establishment thinking within the university or outside of it. It is time now to ask universities over which the State exercises a certain level of oversight, and clearly this legislation is about that, what they are doing to protect the academic freedom of students. A key area of this comes under equality. As I said, it is not confined to equality, but it very much comes under equality. If one student feels inhibited, or is inhibited, from engaging in the pursuit of ideas, for example, a proposal for thesis, and another student does not, for whatever reason, for instance, because the ideas are in vogue or not in vogue or there are cultural, economic and institutional pressures, that is antithetical to what a university is supposed to be about. That is the reason I am asking, in conclusion.
I appreciate Senator Mullen’s concerns about academic freedom. It is crucial and a cornerstone of our democracy. The Senator is an advocate for the freedoms we need to protect and guarantee in many countries around the world. Ireland is, I hope, a great advocate for that through its participation in international organisations.
We acknowledge that academic freedom, which is addressed in section 120, is a crucial part of the Bill. It is important that the academic freedom of all our institutions has been enshrined here in the Bill before us. It is important, as Senator Mullen mentioned, and I feel it is present in the Bill as well, that academic freedom is for all the higher education institutions, and that encompasses both students and staff. The Minister may wish to comment on that. That is a cornerstone of what we want to achieve in Bill. We want to ensure academic freedom will be part of everything our third level higher education institutions are funded for through the HEA.
I have just returned to the House. Speaking about academic freedom, I spent quite a lot of time in further education in Blackrock, as the Minister knows. In the late 1990s and early 2000s, we had the good fortune to attract quite a number of students from China. They were excellent in information technology, IT, and various other areas but in areas where they were asked to express an opinion, there was always a difficulty. Why do I bring that up with respect to equality and academic freedom? Substantial funding has come into academic institutions from China through Confucius Institutes and so forth. It is important that we underpin academic freedom and ensure that regardless of where this welcome funding comes from, we protect the freedom of institutions to develop and deliver programmes in a fair, open and equal way and with full academic freedom.
Having said that, I am also aware that, from time to time, academic freedom is used as a shield to prevent questions being asked. I am aware of one particular institution, which I will not name, in which a particular practice went on. The offended party contacted the institution, said the practice was outrageous and they deserved and required the right of reply to the particular programme that was being run. They were told they would not be given a right of reply because the lecturer in question was operating under academic freedom. The matter was escalated and went to the top of the institution in question. The answer came back that academic freedom meant there could be no interference. There is a fine line to be watched there. I am 100% behind academic freedom, but we must also be careful that it is not used to mask other issues.
I spoke about China, which was not the area that gave rise to this problem. I know from my work on Joint Committee on Foreign Affairs and Defence and the debate in the House on Taiwan that the Chinese do not take kindly to any sort of criticism. From that point of view, this is something we need to watch. It is a delicate matter for the Minister and whoever succeeds him as Minister. I hope that will not be for a long time in light of the vote this afternoon.
There is quite a bit to mull over in this series of amendments. I will start with Senator Mullen’s acknowledgment that the placing of the Bill is not the substantive issue. I see what he is trying to do here and he eloquently outlined it.
To add to Senator’s Craughwell’s point, we had a discussion in the Dáil on the need for greater transparency around funding sources, etc.That is probably something we can all agree on; I certainly hope so. How we achieve this is the interesting part of the discussion in many ways. One element of the Bill that has been somewhat criticised in this House is the ability of the HSE to set codes, guidelines and the like. This is a useful area in which such guidelines and codes could be drawn up in respect of interactions with others abroad, transparency around that, and respecting freedom and autonomy. It is possible to respect freedom and autonomy and still have full transparency. I am not unsympathetic to the argument. I still have an open mind on whether that is enunciated in the legislation, or in the provisions for codes and guidelines in that legislation.
I will make two other points. It is not to be argumentative but I am not sure the equality statement is the right place to put this. That could have an unintended effect. The equality statement should stand alone. I am not suggesting this is anyone's motive at all, but the suggestion there can be a dissent from equality because of academic freedom for students is not the right place to insert this, to take the broader point the Senator made. The other point, which is more of an observation, is the amendment as drafted very much refers to academic freedom of students. In the legislation generally - and my colleague, Senator Dolan, referenced academic freedom - we are referring to academic freedom of staff. That is a different point but I will highlight it.
I am happy to engage with the Senator on this. I am not giving an assurance in the House that I will bring forward an amendment or support an amendment on Report Stage, but important issues have been raised about how our institutions are fully independent, autonomous and free. How there is transparency regarding sources of funding and relationships that come from outside the Exchequer is an area worth exploring.
On Senator Higgins's amendment and Senator Ruane's discussion of it, this is an area I am genuinely happy to discuss with them. I am not in a position to accept the amendments but not for what I hope they will not see as bad motives. I am teasing these issues through with the drafters of the legislation, and with my officials and team. Taking the amendments in order, amendment No. 3 references the Equal Status Act. I fully subscribe to supporting the Act. The Equal Status Act, by its very nature, can and must be applicable to all citizens at various stages. Any one of us can find ourselves discriminated against on any one of the grounds outlined in the Equal Status Act. What we are trying to do in this section, and perhaps the Senators think we are not doing it right, is call out particular under-represented groups and particular priority groups. That is what we are trying to achieve. Not every ground under the Equal Status Act is necessarily under-represented in higher education whereas there are some quite specific groups that are under-represented but might not be explicitly covered by the Equal Status Act. I am happy to engage further with Senators regarding that.
On the issue of "and social classes" in amendment No. 4, again, I see what the Senator is trying to do. I am struggling to work out how we even define social classes. If we put this into the legislation, what is the added benefit of the wording?
I am sure the Senator will come back in but how we define social classes and how we envisage that working is the question I had.
Amendment No. 156 proposes to include an additional provision that an t-údarás shall have regard to in assessing the demand for higher education at regional and national level. We believe this is covered by the provision in section 34(3)(d)(iv), which references issues of equality, diversity and the inclusion of students in priority groups and persons in those groups seeking to become students in higher education.
Amendment No. 212 proposes to have representative organisations to which the Equal Status Act applies. We are trying to keep it a little more flexible. There is already very clear provision in the legislation in respect of consultation with other bodies or persons as necessary. I am not sure it would be necessary to consult everybody covered by the remit of the Act on every matter. Some matters will quite simply not be relevant to some grounds of that Act. It could very much vary from case to case.
The matter of equality versus equality of opportunity and equality versus equity is a real issue. There is a difference between equality and equity. There is definitely a difference between equality and equality of opportunity. I am not convinced this is the right part of the Bill in which to address that. Again, I am not being particularly argumentative. This part of the Bill relates to equality statements in and of themselves. There is a very good discussion to be had about equity and access. I would argue we have dealt with that in other parts of the Bill. The Senator may argue we have not done so well enough. That is a legitimate debate to have.
Given the Minister said he will engage, we will follow up on the issues of equity and equality of opportunity. There is always a danger when we name some groups and not others in legislation. That is something we get warned off quite often. Certain groups are mentioned but, for example, members of the Traveller community are not named. We know there are very specific obstacles for those who are parents, but in particular those who are parenting alone and have that family status. There is a danger that in talking about unrepresented groups, we may address the matter of such groups but, even within that, cohorts may be forgotten. It may be said we are dealing with unrepresented groups but we have decided not to deal with, or take active measures on, those groups that may need particularly high levels of supports, for example. There is a danger with the wide framing in that regard.
I am happy to engage with the Minister on equality and equity. I concur with him. My colleagues and I have tabled a number of amendments relating to academic freedom. We tabled them to this section in the context of the functions of an t-údarás. That may be a more appropriate place for them. On the equality statement, the Minister will be conscious there are amendments that, if we are discussing the equality issue with him, we may engage further with him on around, for example, the IHREC legislation, and the public duty on equality and human rights that applies to all public bodies. It needs to be very clear the function of an equality statement relates to equality and is not something that can be caveated or diluted in that regard.
However, there is an incredibly important function in this Bill as regards academic freedom. We have tabled amendments on strengthening that, including how it applies to students and staff. They are both important debates. I am conscious this amendment relates specifically to the equality statement at present, but I hope we will also get to discuss the other matter.
I will refer to a small grammatical point in amendment No 3, which states, "after “disadvantaged,” to insert “persons to whom the Equal Status Acts 2000 to 2018 apply to,"." The second "to" is inelegant. One should not end with a preposition anyway.
The Senator has never been better than he is now.
I thank the Minister for his considered and, indeed, considerate response to my amendment. He raised two points. The first recognised the validity of the question posed, namely, whether an equality statement should be in the legislation or if it should be an option of an t-údarás to produce a code, policy or guideline on the matter. I will make the point that this is a very important issue. The reason the production of an equality statement is required directly in legislation is in a way, I presume, because it is too important to be left - I will not say at the whim because I do not want to suggest the board or its CEO do not take their duties very seriously - to the question of whether they might opt to produce a code, guideline or policy. There is a further question underlying many of our concerns about the requirements and scope of the CEO to take certain actions. What if there is a CEO who is not strong on this area? This is partly why we are also concerned to ensure the CEO has the approval of the board for certain important decisions.
The question of academic freedom of students is too important not to be in the covering legislation.The issues are emerging and are emerging now. They are not just possible issues; they are real, as I said in the context of the freedom and safety of students and staff coming from abroad. I am referring to students, in particular. In the times in which we live, there is a perception that people are not as free to engage in free and open inquiry as we might hope in a democracy. It is important that the Government take a position on that and say we now need to unpack the question of academic freedom. The Minister rightly says people understand the matter to be about academics being free in their academic areas, but I am saying that academic freedom, if it is to make sense, is freedom of academic pursuit and therefore must apply to students. It is too important not to be in the legislation. That is the first point.
The second point concerns whether it ought to be under the heading of the equality policy — Senator Higgins does not agree with me that it would work there — or somewhere else. Once it was in the legislation, I would not greatly mind, but I insist that academic freedom of students is a question of equality. It is also a question of quality. Let us say somebody wants to depart from perceived wisdom on, say, climate change in an extended essay or thesis for a Master's degree or PhD. Do we want that to be possible in a university? I do but not because I might agree with where the student or postgraduate is coming from. The student would be subject to the standards on the assessment of his or her work. To be able to go there is vital. It is what we want our universities to do. They protect us, in the way the Parliament is supposed to protect us in other ways, by allowing this inquiry. That, at its core, is an equality question. Are people to be free in the pursuit of ideas, the development of theories, research and so on? It is an equality question. I insist on that to Senator Higgins. It is not about subtracting from equality thinking. Equality thinking expands to include the fundamental equality of students, one to another, to pursue ideas, research and so on. Of course, I am also stressing that it is an issue of quality because, if it is not possible in higher education, the students will be the poorer for it, and the poorer will be the Irish educational and academic product. I ask the Minister to consider putting the provision in the legislation. I defend the idea that it goes to the issue of equality and therefore would not be out of place in an equality statement, but the important thing is that it be included.
Does the Minister see any role for the HEA and–or guidelines issued by the HEA in ensuring universities, lecturers, student societies and student unions are free to pursue diverse opinions without being bullied out of it by one ideology or another on university campuses, in particular?
I have only a very brief point. My colleagues have provided me with a copy of the Universities Act 1997, which might be useful in respect of the question of Senator McDowell, who will be very familiar with the Act, and the question of Senator Mullen. I presume Senator Mullen is going to consider the matter more between now and Report Stage, as will I. In Chapter I of Part III of the Act, which concerns the objects and functions of a university, subsection 12(d) states the objects of a university shall include "to foster a capacity for independent critical thinking amongst its students". The idea of reading this legislation in consultation with the sectoral legislation is an important consideration for all of us. "Yes" is the short answer to Senator McDowell's question.
On my final point, I will go from memory. Deputy Ó Cathasaigh raised a point in the Dáil about transparency in regard to non-Exchequer funding, which is more to Senator Craughwell's point. We have a responsibility in terms of public funding. That is the role of the HEA. However, what about funding from non-Exchequer sources? It is entirely appropriate to receive funding from non-Exchequer sources, but what about transparency regarding where it comes from? I think that is what Senator Craughwell's point was about. I gave a written assurance to Deputy Ó Cathasaigh in the other House on the HEA being asked to work on codes and guidelines when this legislation passes. I will be happy to share that with Senators Craughwell, McDowell and Mullen in advance of Report Stage if that is useful to their thinking.
The question of quality was mentioned. I have amendments on this that I hope we will get to discuss later. I refer to the value attributed to excellence in relation to the functions. On the question of financial transparency, to which I hope we will return on Report Stage, financial transparency is important but we must not end up with a narrow version of value for money. Therefore, I have a number of amendments. In the debate, we must engage with issues such as quality rather than a narrowed version of value for money. Again, we will have an opportunity to discuss that.
Given that the Minister is going to engage with us on equality issues over the coming days, I will withdraw amendment No. 3, with the leave of the House.
I move amendment No. 5:
In page 13, line 26, to delete "(including knowledge of humankind, culture and society)".
I cannot recall the number of times I have been told from the ministerial chair that lists are anathema. They are because they are not exhaustive. They actually confine rather than expand legislation. For that reason, I propose to delete "including knowledge of humankind, culture and society". What is "knowledge of humankind" anyway? It is either such a vast idea or such a daft idea that I am rendered speechless.
I learn a lot. It is a very valid question that Senator Norris asks regarding where these words came from. The challenge with defining anything is that you have to define it. Once you decide you are going to have a definition, you have to put words to it. The definition we have used on research is one that is generally used internationally. The definition included in this Bill, which the Senator is seeking to amend, comes from the OECD's Frascati Manual, which is generally the global reference point for collecting research and development statistics and definitions. From my own inquiries, I believe knowledge of "humankind, culture and society" is important to research, including the humanities and the like. I do not need to tell a Joycean scholar like Senator Norris about the importance of that. The definition came neither from me nor my very learned officials but from the OECD Frascati Manual.
I will be very brief. Given the broadness of the definition, the reference in the Frascati Manual and the Minister's acknowledgement of the importance of the humanities, I wish to note that, at a later point, I will be introducing amendments because I am concerned that in the sets of partnerships envisaged in the legislation, Science Foundation Ireland is mentioned but the Irish Research Council and the Health Research Board, which have very important roles in the humanities, are not equivalently mentioned. I am sure that mentioning Science Foundation Ireland while leaving out the Irish Research Council is an inadvertent oversight. It is useful to make this point. I will be moving amendments in this regard on Report Stage.I would be worried if the Minister were to use "knowledge of humankind, culture and society" as a benchmark, given the empathy with humankind of some of the individuals I have met in my life. Culture changes over time. I threw that in for the hell of it. The Minister's view of humankind and my view of it may be two very different things.
I move amendment No. 6:
In page 13, to delete lines 33 and 34.
These amendments predominantly relate to the issues of the definition of "student union" and indeed, a large number of amendments throughout this Bill that relate to the important role of students' unions. We will later discuss my amendments with regard to ensuring that there is not an erosion of the role and representation of students' unions within specific institutions of higher education, where the lowering of numbers is lowering the level of representation of students' unions, including the very important roles played by different students' unions officers in specific institutions and an t-údarás. Simply having a USI representative on an t-údarás is not necessarily sufficient because there are universities, including UCD and UL, that are not represented by USI. The Bill is, in some cases, lowering the levels of students' unions representation on the boards of institutions.
However, all of those amendments will flow partly from us being very clear that we know what we are talking about when we talk about a students' union. I have to strongly disagree with the proposed definition put forward in the Bill. The Bill proposes that a students' union, "means the student union or other student representative body recognised" by a higher education provider or a Minister. Students' unions are very important because they represent the students' voice. One of the crucial points is that they are chosen and elected by the students. This effectively reverses the power in that regard, whereby the relevant body, which will have access to the limited representation under the Bill, is that which either the institution or the Minister chooses to recognise, and does not ensure that we have a proper representation. That is the reason for amendments Nos. 6 and 7.
Amendment No. 6 deletes the current definition of a students' union, which is not appropriate, in that the union would need to be recognised by a governing authority or a Minister. I know the current Minister is engaging with students' unions. Future Ministers, Governments or individual institutions may have different points and points of conflict. They may indeed prefer to have a different representative body with a different power balance. If we look to places such as Hungary, where there has been a systematic dismantling and repression of the power and voices of students, it is very important that we future-proof this legislation.
Amendment No. 7 proposes a preferred alternative to deletion. It specifically defines that a students' union would be an independent body that is elected by the students. I know a couple of amendments have been put forward in that regard, but the fundamental point is that the students choose their union. A students' union must be independent and elected and chosen by the students, not awarded status by a higher education institution or a Minister. This is fundamental, because if we say that recognition downwards has more weight in the legal recognition of a union, rather than an electoral mandate, that undermines the democratic frameworks which are crucial to students' unions. I know many in these Houses have their own background within the students' union movements. We have a fundamental understanding of what unions are in terms of collective power, decision-making and representation of interests.
I note that there is a diversity of unions that need to be properly represented in terms of professional unions and academic institutions. I have included Fórsa. SIPTU and others have all been mentioned with regard to professional staff. Their lack of representation is an issue to which we will come later and which I will seek to amend. There is also a diversity of students' unions.
There is a danger this could lead to a level of cherry-picking. We are very aware of wider discussions on trade unions. We have seen employers in the State which set up employee representative groups, that they would prefer to have and discuss with, rather than speak to the trade unions that represent workers. We do not want to have an equivalent, parallel language and practice here. Whether the Minister accepts the amendment in terms of the language I have put forward, it is absolutely fundamental that this Bill recognises that students' unions are elected by students.
Amendment No. 211 specifies that in preparing an equality statement, the education institutions would consult with representative groups and organisations. I have not specified such groups, but it is the principle. Those would be students, in particular, in this context. I am not talking about NGOs as I did previously, but students' groups that represent. We talk about under-represented groups within the university. Those groups may need to have that specific voice put forward in terms of being consulted because, they may not be large enough in number that they will end up elected fully to the students' unions. I am thinking of groups such as Minceirs Whiden in NUIG and the UCD LGBTQ society. A number of under-represented groups with which this Bill specifies that it wants to engage have their own representative organisations and groups that they have put together within universities. It is important to engage with them with regard to the equality strategies.
Amendment No. 213 inserts a new paragraph in section 62(5) to provide that an equality statement would specify the policy of the institution with regard to the protection of mental health and well-being. This could be within the equality statement or it may be a separate measure. I reserve the right to bring it forward elsewhere. It is crucial that there would be policies specified with regard to protection of mental health and well-being of students and staff, and supports in place within the institution, around the promotion of positive health and well-being. We know from the ESRI disrupted transitions report last month that poor mental health during the pandemic and Covid has been extremely disruptive in terms of young adults' employment, education, day-to-day activities and, indeed, mental health.
I have lengthy provisions and discussions to make in the area of mental health, because the Minister will be aware that it is a matter of absolutely crucial importance to staff and students. However, given the time constraints, I will move on. I note the high numbers of young people, many of whom are students, who are at the threshold for depression and the ESRI research in that regard. That is of significant concern.
Amendment No. 217 is important. The Minister mentioned the issue of social class and social and economic deprivation being wider than equality. If we are looking at equality and wider than those simple categories currently named under the Equal Status Acts and so forth, a crucial issue is that we would make provisions in our equality statements with regard to the policy of the institutions in terms of ending academic precarity.Precarious employment in Irish colleges leaves many academic staff and PhD students who work unable to secure bank loans, afford healthcare, find accommodation, start families or get above the poverty line. The Irish Precarity Network, which is a group of academics, researchers and educators, has warned of the devastating impacts.
A few years ago I launched a report from TASC which looked at precarious employment. The Living with Uncertainty report looked at the extremely damaging effect of precarious employment on individuals and society, including issues like academic freedom. It highlighted universities as an area where there is an acceleration in the levels of such employment and that is having a negative impact in precisely the kinds of institutions that should be coming forward with proposals for a more equitable society. This is a loss for society as well as for the individuals.
We know there are a huge number of people on temporary contracts of between three and 12 months. For PhD students, the Irish Research Council is deeply inadequate. I have facts and figures on precarious employment and the devastating impact it is having on individuals and on the institutions, the quality thereof and the ability of those working in them to do challenging work, build momentum or explore or do blue-sky thinking of any kind because they are constantly moving from contract to contract. I will not discuss the figures because we have so many amendments to get through. I know the Minister is aware of them and believe we should in our equality statements include provisions on precarity.
The Athena SWAN system, an established measure on gender equality in universities, has named precarious employment as a gender equality issue and identified the number of staff on secure contracts with secure progression pathways and continuity of employment as one of the main factors in determining whether we move forward on equality. The equality and precarity link has been strongly made by Athena SWAN regarding academic institutions. One of the best ways to deal with this is to make sure we have trade union representation on an t-údarás and the boards of institutions.
Amendment No. 274 provides that in preparing a strategic plan the chief executive of a university should consult "representative organisations of students belonging to priority groups”.
Amendment No. 275 suggests that when preparing a strategic plan, the chief executive of a university should consult the "trade union representatives of both academic and professional staff”. I would like to also see these represented on the boards.
I thank the Leas-Chathaoirleach. Amendments Nos. 7 and 8 are remarkably similar. The one difference is very significant. It is that amendment No. 8, which I have come to prefer, refers to the election by students. This is important in terms of democracy so I will move support from my amendment to Senator Higgins's, which I think is a better and more comprehensive amendment.
I support Senator Higgins on amendment No. 6 in relation to the reference that “'student union' means a student union or other student representative body recognised by a higher education provider or by the Minister". I am involved in another area with a representative group which the Minister and the organisation in question have decided they do not want to recognise, yet they were elected by a group within the organisation. That is why amendment No. 8 is the important one and I agree with Senator Norris on that. I do not see how a Minister or institution can ignore a group that was elected by the membership of the student body. I would have huge difficulty if that is in any way enshrined in the legislation. Those two lines enshrine in the legislation that the Minister or higher education provider can turn around and say they do not recognise a given body.
As a trade union representative, I recall sitting in front of a chief executive officer of a vocational education committee, VEC. I went in to make some representations and he looked at me and said he did not recognise the union. We had a long debate on it. As Senator Higgins said, many trade unions have tried to set themselves up in some of the larger companies in this country - some that fly aeroplanes, for example - and the organisation has decided it does not want to recognise them. From that point of view, I support amendments Nos. 6 and 8.
An amendment referred to "priority groups". I have a difficulty with that term because making one group a priority makes another less of a priority.
On precarious employment, one of the most disgusting latent aspects of legislation from Europe was the establishment of employment by the hour in academic institutions, schools and colleges. Highly qualified people being employed for a couple of hours per week is repugnant to any commitment to the organisation. That kicks in to academic freedom, where a lecturer takes a view in the programme he or she is delivering and the academic institution or dean of the faculty does not like it. The lecturer is then gone when the contract comes up for renewal. Whatever happened to the permanent, full-time job?
I would love to know what happened to that. I find it the most difficult thing. I was employed in teaching in 1995 and went straight into a permanent job with full hours. Less than two years later, colleagues were being employed for a couple of hours per week. I remember writing to the Minister responsible for social protection that teachers and lecturers teaching for one hour per day were not earning any sort of income but were not entitled to any sort of welfare because they were working for five days per week. What is more, many of them were required to sit in the staff room in case additional hours came up. This happened in institutes of technology, now technological universities, as much as in second level schools. I do not know what happened that employment in education has become so precarious.
In my final year in the Teachers Union of Ireland, we negotiated a change to the contract of indefinite duration from four years to two, which was a remarkable achievement at the time. The Department and the unions came together on that. If we want the best people driving our academic institutions to the highest levels internationally, we have to give them employment which guarantees their income, the home loan that Senator Higgins spoke about, the ability to buy a car and to live a life as a young person, rather than wait until they are a decrepit old so-and-so like me before they have enough money to live on. It is not good enough. I ask the Minister to take Senator Higgins's amendments on board.
I will speak to amendments Nos. 6 and 7 from my experience of being involved with student unions. What concerns me most about the idea that a student union would be recognised by the governing authority or the Minister is that the power imbalance that inadvertently creates can impact on the type of activism or issues that a given student union may take up if it is at complete odds with a governing body or Minister at the time.That might be due to third level funding, BDS fees or any issues the students' unions have taken on over the years. It could also be about students taking more radical action, like taking over a building or protesting in a disruptive way. In that case, a governing authority might refuse to recognise that student body because it is progressive, is taking direct action or is getting in the way of governing board decisions. We cannot leave it in the gift of governing authorities to recognise students' unions. It would be like me having a mandate from the TCD electorate and then coming in here and having to ask the Oireachtas to recognise my mandate. It does not make sense in the flow of things. Once people are voted in on a mandate and that independent body exists, we should not be looking somewhere else for that to be recognised. We should know that ourselves because we have individual mandates as politicians, in the same way students' unions have their own individual mandates. I would hate for that power imbalance to affect the types of issues students' unions take on out of fear or because of the threat of not being recognised by the governing authority if that governing authority is conservative in relation to union action. I ask the Minister to look at these amendments between now and the next Stage. They are important amendments.
I support amendments Nos. 6 and 7, which relate to students' unions, as well as amendment No. 206, relating to trade union representation. We will never get to the amendments Sinn Féin has tabled but we have a similar amendment, No. 117, on trade union membership on the board of the HEA. Amendments Nos. 206 and 117 relate to academic and non-academic staff, respectively. The absence of specific reference to trade unions throughout this Bill has been addressed by a number of amendments. That is welcome. It is important that they are represented on the board of the HEA. I will say that now because I probably will not get the chance to say it again. As well as the governing bodies of individual institutions, the inclusion of trade unions on the HEA's governing authority is welcome but we could go further there.
On amendments Nos. 217 and 275, Senator Higgins spoke about the precarious employment in these institutions. Precarious employment has been allowed to spread throughout higher education. There needs to be specific reference to this in the HEA's work. Governance of the sector must relate to the working conditions of all workers in the sector. According to the OECD, Ireland's student-staff ratio is 23.4:1. That is well out of line with the EU average of 15:1.
We were talking about the definition of students' unions. We talked about this previously and this is something that came up when I was in the student movement, when we used to meet officials in the old Department of Education and Skills, which has now separated into two Departments. Maybe we were being a bit suspicious but we always got the sense that the officials did not want to define a students' union on the off chance there was a falling out. There was always the question of what would happen if we ceased to exist. We do not operate any other system by saying "but you might disappear". That is not a logical reason. This was said in conversations. Any time legislation was being brought in around this area, we would try to get a definition of students' union in there because it is a good idea to have one.I certainly would agree with the second definition as opposed to the first. Students' unions have representation on a number of bodies. They are democratically elected. I am still mystified ten years on as to why there is so much resistance to defining them in a way that recognises their democratic structures and the fact they are elected by students for students and have a really important role and function. I am not really entirely sure why. I really would love to hear the reason because as I said, over the ten years I have been doing this, we have never been given a solid reason. There were kinds of loose questions, for example about what would happen if things do not work out. It is not a relationship; we are not dating. It is a students' union. They have a long history and have been around. Students' unions predate some of this legislation we are updating. It is unlikely that they will disappear off the face of the earth and even if they do, we can turn amendments around pretty quick smart in here if we have to.
I do not understand why there is resistance to defining it. When we are making such big, broad, sweeping statements about what the future of higher education will look like through this Bill, it would be really good to embed the students' unions into that and give them the recognition they deserve. They are a representative body elected by students both locally and nationally. I do not know why we are not doing it; it is beyond me. I would love to hear why we are not recognising this particular structure of education in the way we could and should do.
This is a good piece of legislation. There are obviously things we want to see changed. We may not get to our amendments but on the students' union issue, in particular, I do not know why we are not doing it. I implore the Minister to consider putting that definition in to give the students' unions the respect and autonomy they deserve for the democratic role and function they play.
I certainly think it should be clear, as does the Minister, that the student voice should be recognised in all cases. That voice should be heard through the democratically elected students' union within the institution and the Union of Students in Ireland, USI, at a national level. As the Minister outlined earlier, it is obviously key within this legislation that there is very specific provision for a USI representative on the board of an t-údarás and enhanced and clear student representation with regard to governing bodies. It has been made clear and the Minister has been very strong in terms of recognising the student voice. It should also be acknowledged that Government policy has been about recognising the student voice, particularly around these issues. I would even cite the recent decision of the Minister for Education, Deputy Foley, to appoint the president of the Irish Second–Level Students' Union to the board of the National Council for Curriculum and Assessment. The Minister is correct in listening to the partners in education at all times and the USI is the representative body for students.
In the same way, in terms of engaging with this legislation, the representative voice for universities is the Irish Universities Association and for the technological sector it is the Technological Higher Education Association. I know the Minister has engaged extensively with them. Those are, therefore, the voices that need to be listened to on this legislation in terms of representative organisations. With regard to Trinity College Dublin, the provost speaks on behalf of the institution. Indeed, with regard to all the other institutions, it is their presidents and governing bodies. Those are the representative structures that speak on behalf of the institutions. In the context of this legislation, I know the Minister has listened to all those from the real representative bodies and has taken on board extensively their amendments.
I was almost pleasantly surprised that I did not have to propose too many amendments because of the number of amendments the Minister took on board during the Dáil debate. A very valid point was made by colleagues, however, because an issue arose historically with one institution around the representation of students on the governing bodies by people who were not democratically elected student representatives. That problem arose but I will not go into that detail.
I am certainly open to this; it is something the Minister might look at considering on Report Stage. To have a clear definition around the provision that representatives must be elected by the students is important. That said, it must be acknowledged very clearly that this legislation very much strengthens the student voice right throughout. It is a big leap forward from both the 1971 Act and the Universities Act 1997.
I wish to clarify something very briefly. I spoke about amendment No. 7 but it is actually amendment No. 8 that specifies matters with regard to the elected body. To be clear, it is amendments Nos. 6 and 8. Amendment No. 8 specifies that it must be an elected body.
On the question of representation, the fact remains that there will be less student representation within many institutions under this legislation. There is a lack of union representation.. When we talk about other representatives, the fact that they would have previously had a representative is a matter of very significant concern, for example in universities in Galway, Cork and elsewhere. Previously, a mayor would have been a public representative who comes from a place where universities play a really fundamental role, as they do in some of our towns and cities. Indeed, a local public representative, such as a mayor, may have sat on boards of governance in those situations. I know that concern has also been flagged. We have, therefore, a number of layers of representation to discuss. I want to clarify the core amendment, however. I referenced amendment No. 7 but it is amendment No. 8 that specifies that it must be an elected body. Again, the Minister heard the importance of that point across the House.
I will make two final points on amendment No. 211. I spoke about the equality statement and we discussed equality and diversity in our institutions and within each institution. I really regret the loss from the previous HEA provisions of the mission statement around recognising the importance of diverse institutions across Ireland with distinct missions. It is not just about diversity and equality within each institution, but also the fact that our academic institutions are diverse and, in many cases, will have distinct missions. It will not be always the case that one size fits all in that regard. That is just to clarify amendment No. 211.
As the Minister, Deputy Foley, has been mentioned, it strikes me that if we were to give more time to this legislation and give proper time between Committee Stage and Report Stage, perhaps we would be able to take on board things that may be discussed in the planned citizens' assembly on education, which is the plan for having a national public discussion on education. It seems a little pre-emptive to make such radical changes to our higher education system before we have a citizens' assembly on the matter.
If we are going to have citizens’ assemblies, let us ensure that this democratically elected Assembly is allowed to do its work in full.
I wish to speak to my own amendments. Again, I must start with a mea culpabecause they are in the wrong place. The moral of the story is perhaps not to burn the midnight oil. The amendments I am proposing here relate to the issue of consultation with students in the context of the strategic development plan of the college and the equality statement. I submitted these for the part of the Bill that relates to the National College of Art and Design, NCAD. Properly speaking, what I submitted by way of a proposed amendment to section 128 should really be in section 61, and what I submitted with regard to section 129 should really be in section 62. As previously noted, however, the position is the same.
Sections 61 and 62 provide for consultation with students or the students' union of the institution. That is what it refers to in the context of the preparation of a strategic development plan and the preparation of an equality statement. The point, which my colleagues made already, is that it is really important to recognise the role of students' unions with all their history and the fact that they are elected by students. They have a particular role. They are funded by universities. They are actually funded by students at the fee payment stage, notwithstanding free education. Some thousands are paid by way of a capitation fee, if that is the correct term, and that goes inter aliato the funding of students' unions, clubs, societies and many other activities.It is very important that this money always be disbursed by the university or students' union fairly and with an eye to equality. The students' union is in a particularly important place but the way the legislation is currently worded appears to provide that it would be not be necessary to consult with students' unions. Rather it provides for consultation with students or with the students' union of the institution in question. As I read it, and I hope the Minister will correct me if I am wrong, it would not actually be necessary to consult with students' unions under these sections. The designated institution would simply have to satisfy the requirement of consulting with students, although the Bill does not specify which students. My amendments propose to replace "or" with "and". The point is that those to be consulted in relation to these matters must include students' unions. However, I also favour consultation with those beyond the students' unions because there are times when the students' unions might not be fully representative. The obligation should therefore be to consult broadly. The consultation obligation should never depart from including students' unions but it may also be appropriate to consult with other clubs and societies or other gatherings of students who represent particular academic or other interests. You lose nothing by creating the broadest possible requirement for consultation. I hope the Minister will correct me if I am wrong but, as the legislation stands, it would be possible to exclude students' unions from the consultation. I do not believe that is what is meant. Notwithstanding my own mistake, this problem can be remedied in sections 61 and 62. Replacing the word "or" with the word "and" in sections 61(4)(d) and 62(4)(d) would cure the defect.
Students' unions are often the heart of our universities. Unfortunately, I was never part of one myself but people always reached out. In the past four or five years, I have seen students' unions being very inclusive of people from ethnic minority groups and trying their best to include them. We cannot have legislation that does not include all of the students' unions and that does not treat the 24 institutions highlighted in the Bill equally. We talk about empowering our young people and empowering women to go into politics. This can be a starting point for young people in giving them power, a voice and a say within our universities. I support my colleague, Senator Higgin's amendment No. 8. I hope the Minister will consider it because it is extremely important. It provides that voice, which can be a voice for all students within the university. It can also be a place for engagement and inclusion.
The next speaker is Senator Pauline O'Reilly. Given that she is always very co-operative, I will ask whether she might facilitate the Minister coming back in. She has the intellectual capacity to make her contribution brief to allow the Minister back in.
I just wished to come in on the point Senator Mullen raised because it is recognised as a valid point. Section 61(4)(d) reads "students or the students’ unions of the institution". My reading of this is that it means students of the institution. It cannot just be random students but must be the students of the institution as a whole. It would be worth checking that out because it is a valid argument. We need to make sure it cannot just be a couple of students who are consulted. That is really the point.
I will also endeavour to be co-operative. I will provide the House with a note on the issue of students' unions. I believe we all accept each other's bona fides on this matter. The intention is not to be exclusionary but to be inclusive and to provide for students to be consulted regardless of the scenario. I will provide a note on that in advance of Report Stage in the interests of being brief on the matter.
I will work my way through the amendments because there is quite a lot in this grouping. In fairness, Senator Hoey asked a valid question as to why the hell we do not just define "students' union". It is a question I have asked myself. We have worked with the Union of Students in Ireland, USI, on this matter and have had lots of discussions about it. On the face of it, it seemed terribly straightforward to me that we should put a definition of "students' union" into the Bill. Of course, it was not as straightforward as I thought. I will share with the House the rationale behind not defining "students' union" and what we propose to do as an alternative. We discussed this in the Dáil as well and I have engaged with the USI on it.
We also sought legal advice from the Attorney General's office as to how to set about this. While legal advice is always privileged, I will share the thrust of the advice with the House. We were advised that, in this legislation, the role of the students' union is limited to a consultative role. That consultative role is set out in sections 34(2), 61(4), 62(4) and 126(2). The references to students' unions all relate to circumstances in which the HEA or others must consult with them. The legal view is that, if we defined "students' union" in the context of that consultative role in the legislation, we could inadvertently reduce the scope of what is intended by a students' union. We were also advised that there is a great degree of variation between students' unions and bodies across the higher education sector and that a prescriptive provision could lead to an inadvertent exclusion of some students' unions or bodies from the right to be consulted. We were also told that, as has previously been pointed out, there is a definition of "student union” in the Universities Act 1997 and in the Technological Universities Act 2018. As I made the point earlier, the sectoral legislation carries forward with this legislation. Sections 94 and 105 of the Bill also insert mirror definitions of the section 2(1) definition of “student union” into the Institutes of Technology Acts 1992 to 2006 and the National College of Art and Design Act 1971. Any change to the definition of "student union" could result in a different scope from that of the broader definition in the Universities Act 1997 and in the Technological Universities Act 2018. I am sorry if that is a bit technical but at least it will now be on the record for all of us to consume and look over between now and Report Stage.
I encourage Senators to scrutinise and engage on this matter before Report Stage but I have written to the USI on it. I believe it has published the letter I sent, which I am very happy for it to do. I have talked about how we can use section 143 of this Bill, which relates to the powers of the HEA in respect of policies, codes and guidelines, with regard to student partnerships. That is badly needed. I am, quite frankly, not happy with how students' unions have been treated in certain universities. I have heard from the presidents of students' unions on that in recent weeks. I am sure this is an issue that will be returned to. Students' unions are democratically elected by students. They are autonomous and independent. Their funding needs to be protected. I believe we have a shared view on that. It is just a question of how best to go about doing it in this legislation. That is my response to amendments Nos. 6, 7 and 8.
On amendment No. 47, in the first instance, I do not believe this is the right place to put it. That is a technical point but I do not intend to revisit this issue. I already made a decision, after consultation with the USI and compelling arguments from students' unions, to increase the number of student representatives on governing boards in comparison with what was previously envisaged in this legislation. That was the right thing to do and will mean that, in most cases, the proportion of the total membership of governing bodies who are student representatives will increase under this legislation. You have to be big enough to admit when you were wrong and I believe the idea of having two such representatives was wrong. Increasing that number was the right thing to do.
I just cannot accept amendments Nos. 184 and 185 in the name of Senators Norris and Boyhan. It is again slightly technical. It is proposed to remove the word “Notwithstanding” from section 43(1) and to put in “In support of” or “Building on”. This section relates to the HEA engaging with students' unions. The word "Notwithstanding” is a reference to something we all talk a lot about in this House, that is, recognising the autonomy of the institution. The primary point of engagement should be between the students' union and the institution.We are saying that, notwithstanding that being the main engagement point, there will be other occasions where the HEA should engage with student unions. The word "notwithstanding", read in isolation, can look like we are trying to exclude something, but it is almost like trying to say "in addition to".
The point I am making now is that our good grace in suspending the House to allow a Minister to vote has been trampled on. We now have a situation where we cannot in good confidence allow a Minister to suspend-----
Excuse me. I am putting the following question: "That amendment No. 6 is hereby negatived in Committee; in respect of each of the sections undisposed of, the section is hereby agreed to in Committee; the Schedule is hereby agreed to in Committee; and the Title is hereby agreed to in Committee."
Garret Ahearn, Catherine Ardagh, Niall Blaney, Paddy Burke, Jerry Buttimer, Malcolm Byrne, Maria Byrne, Micheál Carrigy, Pat Casey, Lisa Chambers, Lorraine Clifford-Lee, Martin Conway, Ollie Crowe, John Cummins, Emer Currie, Paul Daly, Regina Doherty, Aisling Dolan, Mary Fitzpatrick, Pippa Hackett, Seán Kyne, Tim Lombard, Vincent P Martin, John McGahon, Erin McGreehan, Fiona O'Loughlin, Pauline O'Reilly, Ned O'Sullivan, Mary Seery Kearney, Barry Ward.
Frances Black, Victor Boyhan, Lynn Boylan, Gerard Craughwell, Eileen Flynn, Paul Gavan, Alice-Mary Higgins, Annie Hoey, Sharon Keogan, Michael McDowell, Rónán Mullen, David Norris, Niall Ó Donnghaile, Lynn Ruane, Marie Sherlock, Fintan Warfield.