Tuesday, 12 July 2022
Higher Education Authority Bill 2022: Report Stage
Before we commence, I remind everyone that a Senator may speak only once on Report Stage, except the proposer of an amendment, who may reply to the discussion on the amendment. Each non-Government amendment must be seconded. I welcome the Minister, Deputy Harris, back to the House.
Amendments Nos. 1, 9, 73, 74 and 114 are related and may be discussed together.
I move amendment No. 1:
In page 13, to delete lines 33 and 34 and substitute the following: “ “student union” means an independent and self-governing body, elected by students in a higher education institution, that is established for the purpose of promoting the general interests of students of a designated higher education institution, and of representing students, both individually and collectively, in respect of their well-being and academic, disciplinary and other matters arising within, and outside of that institution;”.
Amendment No. 1 specifically defines a student union as an independent body elected by students. The electoral mandate is the key element here, not the recognition of a particular Minister or a governing authority. We spoke about this in detail last week but it remains an unanswered and fundamental point. If we say external recognition of a students' union has more weight legally, rather than an electoral mandate, that will serve to undermine the democratic frameworks both within student unions themselves and within higher education institutions. While the current Minister engages extensively with students’ unions, future Ministers or future governments may have a very different relationship with student leaders. We need only look to Hungary, where there has been a systematic effort over the past number of years to dismantle academic independence and repress the voices of academics and students who protested this. We are fortunate that Ireland is not in a similar situation. However, this legislation needs to be airtight to ensure that, regardless of who may be the Minister or what the policies of any future government are, student unions are able to represent the people who elect them. At later points in this legislation, with regard to provisions relating to governing authorities, there is a deeply concerning lack of specification that it must be student union representatives appointed to governing authorities. I urge the Minister to accept this amendment as it clearly sets out that having an electoral mandate is what gives a student union its ability to advocate for students and their welfare.
Amendment No. 9 seeks a report following the conclusion of the citizens' assembly on education. The Minister would have to prepare and a lay a report before both Houses of the Oireachtas outlining how he or she plans to implement or reflect the recommendations of the citizens' assembly in respect of higher education with regard to amendments to the provisions of this Act and policy relating to higher education in the State more broadly. We have spoken at length about how certain elements of this foundational legislation are somewhat pre-empting the citizen’s assembly on education. It would be beneficial to the operation of the Act in the future if there was a requirement to integrate and reflect the recommendations from the citizen’s assembly within this legislation.
Amendment No. 114 would provide that in preparing a strategic plan, the chief executive of a university must consult with representative organisations of students belonging to priority groups. When drafting this amendment I was thinking of groups like Mincéirs Whiden in NUI Galway and the UCD LGBTQ+ Society.
I want to put on record Sinn Féin's support for these amendments. They are important. It is particularly important to ensure students' unions are independent and self-governing. As my colleague has said, we do not have to look too far, even within the European Union, to see what can happen. I cannot see any reason the Minister would object to a definition like this.
The last time the Minister was here, he spoke about students' unions and it was highlighted that there was a definition in a prior Act which indicated the meaning of a student union. It is very clear that students want to make sure their organisations are representative, that people are elected onto them and that it is those bodies that represent the students at governing authorities across all our universities. The Minister has looked very carefully at this with his team and his officials. He is examining it and is looking at other ways within the provisions of the current Act, and potentially through the guidelines and the policies of the HEA Bill, to even further define and make clear the types of representative bodies that will be on governing authorities.
This issue has exercised both the Minister and his officials quite a bit over the last number of weeks. I thank him and his officials for the briefing and the engagement around this issue. It should be clear that there is a long-running tradition of effective student representation in Ireland and-----
Indeed. I referenced effective student representation specifically. The key point is that within this legislation, there is an acknowledgement by the Minister of the role of students. There is a challenge in ensuring we always have independent students' unions. In outlining some of the legal difficulties, I hope the Minister can assuage some of the concerns and fears because it has happened in the past that non-elected representatives were appointed to a governing authority. I agree with Senator Ruane, and the Minister and I have spoken about this, about the role of universities in promoting democracy and contributing to the democratic space.When we see what has been going on in Hungary and how, unfortunately, student unions have become puppets of the state in many other countries, it is an issue. In that regard, will the Minister give some assurances regarding this specific definition?
I thank Senators for engaging. I join with Senator Malcolm Byrne in thanking my officials for also engaging. There has been engagement between Committee and Report Stages. I acknowledge the good faith with which Senators have engaged and thank them for it.
This is an issue we have been grappling with, particularly in view of the fact that the purpose of the Bill is to strengthen the role of students and student engagement, to clarify opportunities for engagement and to give the HEA teeth where any issue regarding student unions, including their funding, is unresolved. I want to see provisions in the Bill that will enable the HEA to pursue any HEI that does not respect the independence of a student union when it comes to funding. I have seen examples where that has not happened at times, which I am not pleased about. The Bill will present a new opportunity for those issues to be addressed robustly, recognising the independence and autonomy of student unions. There is no disagreement on that, although it might suit some people to suggest there is. Rather, there is a legislative process wherein we are grappling with what can and cannot be put into a Bill and we are looking at the legal advice in that regard. We discussed the issue at great length in the Dáil. I have also discussed it directly with the Union of Students in Ireland, and I have sought legal advice on it from the Office of the Attorney General. For those reasons, I am not in a position to accept the amendment, although I will explain why that is the reality and what the amendment would do versus what some people think it would do.
One key method of addressing student unions’ autonomy is to utilise section 143. Students now have such a section that will provide an opportunity to enforce student autonomy, an important point. Section 143 will provide the HEA with powers relating to policies, codes and guidelines that it has not previously had. I will work with Senators and student unions and we do not need to wait for changes of Ministers or governments or make reference to any other European country. As soon as we get the Bill passed, we can get absolute clarity, in guidelines, policy and codes of practice from the HEA, about the autonomy and funding independence of our student unions, and we will do that. The challenge is that the role of student unions and many other stakeholders is limited in the Bill to the right to be consulted. Where student unions and other stakeholders are referenced in this Bill, it is done in the context of the right to be consulted on a variety of areas, such as planning for the provision of higher education, the preparation of strategic development plans, the equality statement of the HEI and the preparation of guidelines, codes and policies.
As my party colleague, Senator Dolan, reminds us, there is already a definition of student unions in both the Universities Act and in the Technological Universities Act 2018, while sections 106 and 117 of the Bill will insert mirror definitions of the section 2(1) definition of a student union into the Institutes of Technology Act and the National College of Art and Design Act 1971. The legal concern is that any change to the definition of a student union in section 2(1) of the Bill, even though I accept it is done in good faith, would put the definition out of line with the definitions in the sectoral legislation. There are broader definitions of a student union in other sectoral legislation that will come forward with this Bill, and if we endeavour to insert a prescriptive definition of a student union into this part of the Bill, we will knock it out of line with the existing definition in the Universities Act, the Institutes of Technology Act, the National College of Art and Design Act and the Technological Universities Act.
I read somewhere that I had stated there was legal advice I could not share with the Seanad, but that is not what the record of the Seanad will show. On Committee Stage, I relayed to Seanad Éireann the legal advice I had received on this. I very much stand over that advice. The unintended consequences of the amendment would be detrimental to student unions; that is the genuine legal advice and view I have. Section 143 will provide us with an opportunity to copper-fasten the rules of engagement, the structures in place and student unions' independence and autonomy regarding funding.
The amendment relating to the citizens' assembly on the future of education proposes the inclusion of a new section that would provide for the Minister to lay a report before the Houses of the Oireachtas on the implementation of any recommendations from the citizens' assembly. I am, of course, looking forward to the establishment of the citizens' assembly and to its recommendations. Any recommendations can be incorporated under section 33, on the strategy for tertiary education, but considering the Citizens' Assembly has not yet been established, let alone reported, it would not be appropriate to put it in primary legislation in the way the amendment endeavours to do.
Amendment No. 1 relates to a group elected by their peers as a student union. The Minister might clear up one issue for me. As I know from my trade union days, there is always a risk of fringe groups. I would hope the direction the HEA would give in the establishment of a student union is that it would be all-encompassing and that special interest groups would be encompassed within the union, and I would have no difficulty with the union being set up on that basis. Any student body that would allow a student union to be set up without a formal election would be negligent, rather than the HEA or any other organisation like that. I am concerned we are becoming more and more micro in different facets of life in Ireland, and what we do not need in any representative body are fringe groups or splits. There is an old saying in Ireland that the first job of every committee is to sit down and organise the split. We want student unions that represent all interests within the college, including all micro interests. Other than that, I accept the Minister's position with respect to the amendment.
I thank the Minister and his office for their engagement and for the detailed email response to many of the amendments, which has been helpful. When he indicated the definition would be detrimental, is that purely because it would be out of line with that in the sectoral legislation? In the context of what is the best possible definition of a student union, if making it out of line with that in the sectoral legislation is the only issue, there is no reason that, through legislation, we could not conduct keyhole surgery on other legislation to apply the new definition to earlier Acts. If the definition in the amendment is better than what is in the sectoral legislation, we could still use this legislation to amend the definitions in earlier legislation. Is this definition more accurate in regard to how student unions should be defined or are we pinning ourselves to old definitions just because they are not included in the Bill? If the latter, that does not mean we cannot define them through this Bill.
That is partially the case. It is our view, based on the legal advice we have, that the definition to be inserted in this legislation is too narrow compared with the existing definition. As the Senator will be aware, the Universities Act, the Technological Universities Act, the National College of Art and Design Act and the Institutes of Technology Act will travel with this legislation and a broader definition is already outlined, so that is the first challenge. The second challenge, which relates to a legal point on which I have been advised, is that this is the HEA Bill and its scope in regard to how it will interact relates to a consultative role, which does not, as the Senator will know better than I, fully capture in any way, shape or form everything a student union does and that we want it to do. There is, perhaps, an argument for separate legislation on students and student unions, but it is for those reasons we do not believe it resides here. There would be unintended consequences by narrowing our legal understanding of a student union.
Amendments Nos. 2 to 7, inclusive, and 13 are related. Amendments Nos. 6 and 7 are physical alternatives to amendment No. 5. Amendments Nos. 2 to 7, inclusive, and 13 may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 2:
In page 13, between lines 36 and 37, to insert the following:“ “United Nations Sustainable Development Goals” means the United Nations Sustainable Development Goals 1 to 17 set out in the document entitled “Transforming our World: The 2030 Agenda for Sustainable Development, published by the UN Department of Economic and Social Affairs 2015” or any document which amends or replaces that document.”.
The amendment proposes to insert a definition of the UN sustainable development goals into the Bill.I propose this amendment because in subsequent amendments Senator Higgins references the SDGs and, given Ireland has signed up to these, it is important that we reflect our international obligations in how the higher education sector functions into the future. I urge the Minister to accept this amendment as it is an exact copy of the definition the Minister of State, Deputy Ossian Smyth, has in the circular economy Bill and is a much better reference point to sustainability than the current interpretation of "environmental development and sustainability". Ireland helped negotiate the SDGs, they are a blueprint for how we live together on this fragile planet and to omit them in favour of an outdated and dangerous reference to sustainability is not acceptable.
On amendments Nos. 3 to 7, inclusive, the current interpretation of "environmental development and sustainability" in this Bill is not adequate, involves an outdated understanding of the concept and represents a backward step. The Minister's Department informed Senator Higgins that the definition comes from the 1987 Brundtland report from the World Commission on Environment and Development. This commission was dissolved in 1987 and predates the UNFCCC, the Paris Agreement and the SDGs, which Ireland negotiated and which form the blueprint for how we might live together sustainably and equitably and share this planet.
I have proposed a number of amendments to it, including a straight deletion, as I believe it would be better not to use this definition, given how imprecise it is and how much it could undermine climate action in our higher education sector. The reference to future generations is not in itself objectionable, but when it is the sole metric against which we measure what we do it is dangerous. The climate crisis is not some faraway future crisis that we benevolently are deciding to begin to address out of the kindness of our hearts; it is here now and millions of people across the world are suffering and dying because of its effects. If we look to Bangladesh we see approximately 10 million climate refugees as a result of floods; if we look to the Horn of Africa we see one person dying from hunger every 48 seconds and 5.7 million children being acutely malnourished. This is not happening in a vacuum. The climate crisis is already disrupting food supply across the African continent and in the immediate future the situation will worsen.
I have also proposed on behalf of Senator Higgins inserting "climate justice" into the definition and a recognition of historic responsibility for climate change and its effects on current populations. This is to ensure that we have a recognition in our higher education sector and in the sectoral policies towards climate of our common but differentiated responsibilities and of our historic responsibility for emissions. That is why the alternative interpretations we have suggested reference climate justice and historic responsibility for emissions.
I urge the Minister to accept one of these amendments because as it stands this language is regressive, outdated and dangerous if it is the frame for action on environmental development and sustainability in our education sector.
I withdraw amendment No. 13 as it was resubmitted in error.
I thank the Senator. I got the distinct impression in the other House when we made additions to the legislation in relation to environmental sustainability and climate that there was a view we had strengthened the legislation. I do not generally name-check colleagues but Deputy Ó Cathasaigh did significant work on this on Committee Stage to get it to a better place than I concede it was at when the Bill was published.
Amendment No. 2 proposes to include a definition of the United Nations sustainable development goals in the Bill. This definition is linked to the proposed amendment to section 2(3), which defines "environmental development and sustainability". A number of amendments were made to the HEA Bill on Report Stage in the Dáil which strengthened the provisions related to sustainable development in climate change, including the addition of the definition of "environmental development and sustainability" in the Bill, which was carefully considered and developed through the legal drafting process.
I heard reference to the Brundtland report and Senator Higgins raised this with my officials yesterday. We have engaged with the Department of Environment, Climate and Communications to ensure that Department is satisfied with the appropriateness of it and it is. The report of the United Nations Brundtland commission defined sustainability as "meet[ing] the needs of the present without compromising the ability of future generations to meet their own needs". This definition encompasses the environmental aspects as well as the socioeconomic factors and is the most widely used and internationally accepted definition. The definition is also referenced in our national strategy on education for sustainable development 2030, which we launched last week or the week before. I am not in a position to accept this amendment.
I said in the other House that section 143 of the legislation allows guidelines to be developed in relation to climate action and environmental sustainability. A fair few Deputies said that was all well and good but asked how I would guarantee that when the legislation passes the guidelines follow. Accepting that we live in a climate emergency, I took the step of writing to the HEA in advance of the Bill passing - I can provide Senators with a copy of that letter if I have not already done so - specifically asking it to prepare to commence work on guidelines for sustainable development for designated institutions of higher education. The HEA is aware that the first guideline and code we want it to produce under this legislation relates to environmental sustainability, climate action and climate justice. I am using section 143 of the Bill, when enacted, to put in place what I think the Senator is trying to achieve, but through the guidelines and codes.
I thank the Minister for his response. It is not to say the Bill has not been made better on previous Stages but it possibly has not been made its best. The Seanad is trying to bring it to that next level of better. We are hugely concerned by the outdated definition in the Bill. I will press the amendment.
I move amendment No. 3:
In page 13, to delete lines 39 and 40, and in page 14, to delete lines 1 to 3 and substitute the following: “(3) In this Act, references to environmental development and sustainability shall be construed as references to development and actions that meet the needs of the present and which contribute to climate action without accelerating or worsening the climate emergency for those already experiencing its effects and those who belonging to future generations who may experience its impacts.”.
I move amendment No. 4:
In page 13, to delete lines 39 and 40, and in page 14, to delete lines 1 to 3 and substitute the following: “(3) In this Act, references to environmental development and sustainability shall be construed as references to development and actions that meet the needs of the present and which contribute to climate action, in line with the United Nations Sustainable Development Goals, without accelerating or worsening the climate emergency for those already experiencing its effects, in line with principles of recognition and reflection of climate justice and historic responsibility for emissions, and those belonging to future generations who may experience its impacts.”.
Catherine Ardagh, Niall Blaney, Jerry Buttimer, Malcolm Byrne, Micheál Carrigy, Pat Casey, Shane Cassells, Lorraine Clifford-Lee, Gerard Craughwell, Ollie Crowe, Emer Currie, Aidan Davitt, Regina Doherty, Aisling Dolan, Timmy Dooley, Mary Fitzpatrick, Robbie Gallagher, Gerry Horkan, Seán Kyne, Tim Lombard, John McGahon, Erin McGreehan, Eugene Murphy, Pauline O'Reilly, Mary Seery Kearney, Barry Ward.