Tuesday, 20 September 2022
Higher Education Authority Bill 2022: Report Stage (Resumed)
Amendment No. 52 relates to the requirement that a person would be recommended by the Public Appointments Service. I wish to ensure transparency and no danger of potential excessive political involvement in the process. The Minister clarified that he plans to address that issue through other mechanisms.
One issue not addressed and of real concern relates to trade union representation for both academic and professional staff on the board of an t-údarás. That is very important if the board is to represent in a comprehensive way all the elements of the university community or the higher and further education communities in the wider sense. It is important to be able to hear the voice of the workers in those institutions. I hope the Minister might be able to accept the amendment. I will not jump ahead. We will return to the question of trade union representation within individual higher and further education institutions later. On a cascade effect it should be reflected on the board of an t-údarás.
As I said, I believe amendment No. 55 has been addressed by Schedule 2 and I will not move forward with that amendment.
I will speak to amendment No. 53. I welcome that the absence of specific references to trade unions has been addressed in a number of amendments since Committee Stage in the Dáil. It is important that they are represented on the board of the Higher Education Authority, HEA, as well as the boards of individual institutions. While the inclusion of trade unions on higher education governing authorities is welcome, this Bill sets up the HEA with new legislation and it would be a mistake not to include trade union representation on the board of the Higher Education Authority.
Although amendment No. 54a is mine, I will not press it. It concerns the nature of the membership of an t-údarás. The key point is that an t-údarás is not a representative body in the sense of people being drawn from different sections, but it is important that those who sit around the table have a specific knowledge of a range of fields relating to education. In that regard, it is essential, as has been normal custom and practice, that at least one member of an t-údarás, if not a number of members, would have international higher educational experience for comparative purposes but also in terms of the academic environment within which they work. Like all boards, the role of this board is to function collectively. People should not be there simply to represent the sectors from which they come. That said, it is important that there is a broad range of experiences and that would obviously include international experience.
The Minister of State, Deputy Niall Collins, and I will be taking the debate tonight. He will be here for some of it and I will be back for the rest of it.
I thank Senators for their amendments. I responded in July to some of these amendments and those responses still stand. I welcome Senator Warfield's acknowledgement that we have tried to strengthen the references to trade unions on a number of occasions throughout the Bill. I have previously given the view that being a competency-based board does not suggest that members of trade unions cannot be members of the competency-based board - of course they can. However, prescribing that they must be members, would make it a representational board which is not the purpose.
I take Senator Malcolm Byrne's point. While I do not propose to accept the amendment, as he rightly said, it has been custom and practice - it is nearly always the case - to have people with international backgrounds in education on the Higher Education Authority. I would expect that to continue, but it is important to give the Minister and future Ministers the discretion to pick the skill set that is needed to respond and look at the composition of the board in the round.
I move amendment No. 53:
In page 20, between lines 35 and 36, to insert the following: “(c) Not less than one of the persons appointed under paragraph (a)shall be a trade union representative of academic staff in the sector, nominated by the relevant trade union(s).”.
I move amendment No. 54:
In page 20, between lines 35 and 36, to insert the following: “(c) Not less than two of the persons appointed under paragraph (a)shall be a trade union representative, one representing professional staff and the other academic staff.”.
There are a number of amendments to be covered here. Amendment Nos. 56 to 58, inclusive, seek to ensure that the list of bodies with which an t-údarás may co-operate under section 17 would include the Irish Research Council, the Royal Irish Academy and the Health Research Board. As we have discussed, it is important not to end up with a siloed approach. Science Foundation Ireland was mentioned explicitly, but other bodies have not been. There is a very wide remit of research.I have highlighted in particular the leading work the Irish Research Council has done in a number of areas and the Health Research Board also plays a crucial role. The aim is to specify that these would be bodies with which there may be co-operation. It is better to have them named rather than just implied or hoped for. In the context of a couple of them, the Minister indicated that there may be another way in which they are covered. However, I worry about a tunnelling of our approach to research, as I have highlighted previously, and the neglect of some areas, including social policy and the humanities.
Amendment No. 75 is really important. It seeks to ensure that local authorities and councillors would be persons or entities with whom an t-údarás would consult for the purposes of preparing a draft plan under section 46. In subsequent amendments I have tabled, there are provisions to retain the role of local authority members on governing authorities. It is vital that councillors, as local representatives, have a say on these governing authorities. I can give a couple of examples to illustrate why this is important. Universities are not just educational entities or businesses; they are places and they exist within other places. It is crucial that, for example, the role of universities in the context of local development plans is considered. There should be correspondence between a local development plan, which is a vision for a town or city and the role of the universities and the vision for the moving forward of an institution. In my own home town of Galway, the National University of Ireland Galway is a crucial part of the city landscape. It has much of the land by the river and is really fundamental in terms of all of the collective goals of Galway around biodiversity and other issues. It is really important. In Dún Laoghaire-Rathdown, for example, University College Dublin, UCD, is one of the major employers in the area. There is a very key relevance here and in that context, it is appropriate that local authorities and councillors are specified as bodies or persons with whom there should be consultation when preparing a draft plan. They are included generally in terms of an t-údarás and looking to the general direction in terms of local authorities, but I want to specify them because down the line, in terms of individual governing authorities, it becomes even more important in the context of place-based expertise.
Amendment No. 84 provides that when preparing an equality statement under section 62, designated higher education institutions shall consult trade union representatives of both the academic and professional staff. Amendment No. 115 similarly provides that in preparing a strategic plan, the chief executive of a university shall consult trade union representatives of both academic and professional staff. These issues are really important and I have tabled a number of other amendments relating to them. When we talk about equality, the question of economic equality is crucial. It is acknowledged, for example, in the Athena SWAN charter, that in terms of gender equality, the conditions of work and conditions of employment, these economic factors, have a particular impact on women. We also know from the Citizen's Assembly on Gender Equality - and I am lucky enough to sit with others on the special Oireachtas committee on gender equality - that one of the key recommendations was the right to collective bargaining and an enhanced recognition of the role of trade unions. This is a really key issue. In the context of the equality statements and strategic plans, it is important that trade union representatives are included, not just for the academics but also for the many other professional staff who keep our universities and higher education institutions running.
Amendment No. 142, which is the final amendment of mine in this grouping, seeks to ensure that local authorities and city and county councillors would be bodies or persons with whom the director of the National College of Art and Design, NCAD, would consult for the purposes of developing a strategic development plan. This is consistent with the points I made previously and is a provision explicitly relating to NCAD because it is covered in a different section of the Bill.
The Minister is welcome. I congratulate him on the work he is doing in respect of further education. For 25 years of my life while working in further education, I wanted a Minister like him who would drive matters forward. Fair play to him; he is doing a great job so far.
In the context of amendment No. 76, the Bill reads "such other body or person as it considers appropriate". We tabled the amendment to include local authorities and councillors as well as those other bodies and persons considered appropriate.
I attended an Association of Irish Local Government, AILG, meeting last week and can assure the Minister that even Fine Gael councillors are quite exercised about this. They feel they are being written out of the legislation. In the case of higher education institutions, councillors have a major role to play in bringing to bear local issues and concerns. What we are seeking here is that the legislation would specify a role for local authorities and councillors, rather than it being vague, which is the current position. I fully appreciate that the Minister will probably argue that under the section as it stands, it is open to the institutions to bring local authority people in but I have spoken to members of local authorities and they feel more and more excluded. They see more and more centralisation and are concerned. They work hard within their communities and they deliver. The Minister knows them better than I do. I know that he spends a lot of time meeting people on the ground out there so he probably heard all this before he came into the House this evening. In that context, I implore him to take on board amendment No. 76 and to specify a role for local authorities and their members.
I thank the Acting Chairperson. The Minister is very welcome. I will be brief. I concur with Senator Craughwell's comments. I served on a local authority for a long number of years and know that there is a wealth of experience among local authority members. They are the people who are on the ground every day of the week. They can feed into this in terms of providing an insight into the views of the people on the ground. For many years we have had local representatives on various bodies, including regional technical colleges, or RTCs as they once were known, and the institutes of technology, ITs, and they can do nothing only add to the work involved here. I support Senator Craughwell's argument that they should be named in the legislation and not just covered by the term "other body". There are over 900 local authority members who were elected by the people to put forward their views. Amendment No. 76 is an ideal way of including them.
I thank Senators for their amendments. There is quite a wide breadth of issues covered in this grouping. I will try to respond to each, starting with amendments Nos. 56, 57 and 58 in the names of Senator Higgins and others. These amendments relate to expanding on the names of the organisations and agencies that are listed and prescribed in the legislation. I understand what the Senator is trying to do here and in truth, I half wonder if we would have been better naming none. I take the point the Senator makes but I would respectfully suggest that if we name these bodies, then people will ask about Teagasc, for example, or some of the other research bodies. I am not being flippant or smart here but there is such a breadth of research bodies in this country and this is always the risk when one gets into naming. I am satisfied with the way the legislation is currently written. Section 17(7)(b)(iv), specifically references: "a body established by or under an enactment in which functions are vested by statute or otherwise relating to purposes connected with the provision of higher education by designated institutions of higher education and that is prescribed by order of the Minister for the purposes of this section." I would make the broader point, which I have made previously, that we will have a research Bill coming before the Oireachtas next year, which I am really looking forward to. I think it will be the first time we have ever had stand-alone legislation on research.There will perhaps be a chance to tease out some of these issues, including where the Irish Research Council, Science Foundation Ireland and others fit into the landscape under Impact 2030. I take what the Senators are trying to do. If I expanded the list at this stage based on these amendments, I would probably still have left others out. I am satisfied that the intent is clear. We can revisit some of these matters in the research legislation next year.
Let me be clear on the issue of the local authorities and councillors. As Senator Craughwell suggested, I know city and county councillors well. I particularly know my party colleagues well. I was a councillor. I appreciate and value the role of our local representatives. Senator Carrigy made important points about the on-the-ground knowledge of democratically elected people. It is not the intention of this legislation by any manner or means to dilute or diminish in any way the role of our local authority representatives. I will make the point that the Technological Universities Act, which any of us lucky enough to be Members of the Oireachtas in 2018 voted on, already made a number of changes in respect of governing authorities. We will get to that section of this Bill later. In respect of governing authorities, I am saying it is clear that when we pass this legislation, regulations will have to be set for how a governing authority will be composed with the new configuration. Those regulations have to be put forward by a governing authority and approved by the outgoing governing authority on which councillors sit. The regulations then have to be approved by me, as Minister. I see a role for councillors and local representatives in that regard. The regulatory process is where we will explore those issues and how best to address them. There is a specific section of the Bill to deal with that so I will not expand on it now.
Amendments Nos. 75 and 76 deal with the section of the Bill that includes a provision that An tÚdaras shall prepare an equity of access, participation and promotion of success plan, and who should be consulted about that. I am happy that there is already provision in the Bill in that regard. Let me clear that the provision will cover consultation with local authorities and, specifically, with local authority members who are democratically elected city and county councillors.
Amendment No. 84 proposes to include specific reference to trade union representatives of both academic and professional staff in consultation on the preparation of the equality statement. I thank Senators Higgins, Ruane, Flynn and Black for the amendment. There is already provision for consultation with employees of the institution under section 62(4)(e). It is my view that this is perhaps a more inclusive way of providing for consultation with trade union representatives of both academic and professional staff. There is also provision for consultation with "such other body or person as the institution considers appropriate".
I do not believe amendments No. 115, 115a, 115b, 115c or 115d are necessary as provision for the governing authority to consult on an equality policy of a university. Governing bodies are empowered. I am conscious of the debate around autonomy, about which we rightly hear a lot in this House. We value autonomy. It is about trying to get the balance right between putting the structures in place to empower a governing authority and allowing it to get on with its own internal governance. I am satisfied that the provisions in the legislation cover all of that.
The Minister of State, Deputy Collins, is going to take the debate about the next section. Finally in this group are amendments Nos. 142 and 143. They are similar to an earlier an amendment in that they refer to local authorities, city and county councillors. I would make the same point again. This is a specific provision in respect of the National College of Art and Design. My earlier answer stands.
I wish to seek a point of clarification. Forgive me because my hearing is not the best. The Minister said he sees capacity to deal with the county councillor issue at the regulation stage when regulations are being put in place. Is the Minister telling me that all is not lost in that regard? The answer to that question will inform a lot of what I do from here on out.
Not only is all not lost, I would make the point that the reality in Ireland today in respect of the technological universities is that there is no seat for county and city councillors. That is the truth of the matter. Senator Carrigy knows the Technological University of the Shannon, Senator Malcolm Byrne and I know the South East Technological University and Senator Dolan knows the Atlantic Technological University. This is the reality of the situation today. This new legislation will set the maximum numbers, as it should. I believe we need smaller governing authorities. The Bill will set the balance between external and internal representation. It is important in the case of almost all such institutions that there needs to be a majority of external representatives. That is an important change. How those external seats are filled is a matter for governing authorities to decide by regulations, which need to be approved by the governing authority and the Minister of the day.
We are going to come to the significant area of student representation. The fact is that regulations are not the same as rights. I think there is a question here. We are left hoping that governing authorities will recognise the value of local authority input. Some will and others will not. We are left hoping that the Minister of the day, whoever he or she might be, will be sufficiently minded to ensure that representation. Those are not the same as having it directed by legislation. It does not carry the same weight or include the same assurance.
In respect of my amendments on trade unions, I would respectfully suggest that consultation with employees is not the same. We know of many situations where a requirement to speak to some employees or a select group of employees mean a hand-picked group of employees is selected. To consult with employees is not the same as consulting with trade union representation. Trade unions draw their mandates from a large number of members in an institution. They can consult and engage with those members around the input they are meant to be giving. It is simply not the same and it is not a substitute. It would be a concern for it to be understood that consulting with employees is better than, or a substitute for, proper and rightful consultation with trade unions. We want people to have faith in their capacity to influence the decisions that affect them. There have recently been worrying figures in respect of confidence in democracy. One of the ways people get such confidence is for them to see a direct channel of engagement with their peers and those who represent them that will allow their voices to be carried forward and influence the decisions about the institution of which they are a part. The Minister and I obviously disagree but I do not believe that consultation with employees is the same as consultation with trade union representatives. The Minister and I may disagree on that point.
In respectfully disagreeing, I would make the point that we have quite rightly included specific references to trade unions in many places in this legislation. I would be the first to admit that the Bill is much stronger now in that regard than when it was originally published. I thank Senators and Deputies for their work in that regard.
I wish to add one thing to the point I made earlier about councillors, the issue which was raised by Senators Craughwell, Carrigy and others. There are transitional arrangements in place to allow the governing authority to reappoint existing members. I should point that out to give a whole answer. Those transitional arrangements will also be of interest to Senators.
I will speak to this amendment. It is unfortunate that the Minister has left the Chamber at this moment. I will later be pressing the amendments relating to trade unions and local authorities. I have withdrawn or not moved amendments Nos. 56, 57 and 58 in recognition of the Minister's point to the effect that naming individual research bodies might become onerous.Amendment No. 59 addresses what the Minister said about not wanting to name all the individual bodies. It is a blanket provision. He mentioned that he has discretion under the section to engage with other bodies besides Science Foundation Ireland. The other bodies may be "prescribed by order of the Minister for the purposes of this section." This only includes other bodies engaged in the provision of higher education. My amendment No. 59 states that the co-operation agreement could also be with institutions which conduct research. The Minister has stated we do not need to name all the individual research bodies because he has the capacity to incorporate them all under that subsection but that subsection only names those connected with the provision of higher education. The examples that I have given, such as the Health Research Board, or the example that the Minister gave, which was Teagasc, are not necessarily connected with the provision of higher education, but they are connected with the provision of research. I was trying to name individual bodies. I have accepted that we are not doing that, but I worry that we have not even given a blanket provision that allows for the incorporation of other bodies. I think this is probably an inadvertent omission. If it is not addressed today, it will need to be addressed in a research Bill.
It is clear, when we are talking about the brand new technological universities and even the renaming, such as the University of Galway and so on, that many new bodies have reached university status in Ireland. Higher education institutes, HEIs, is the common term that is used when we talk about third level education. The Minister mentioned research legislation that is coming down the tracks before he left. That will give a real purpose and focus to research in this country, particularly when it is conducted at third level. I am delighted to see that the purpose of these technological universities, such as Atlantic Technological University, ATU, and Technological University of the Shannon, TUS, in Athlone, is to build up their research capacity. Bringing these institutions to university status will build the research capacity within each university. That is also allowed for staff, who will be allowed to have a research focus as well as their teaching and academic focus. I look forward to the research legislation that the Minister spoke about. It will give focus to research in this country.
I thank the Senators who spoke on the amendment. Notwithstanding what has been said, the amendment proposes to amend section 17(7)(b)(iv), which relates to bodies which may be prescribed by the Minister to include bodies which conduct research. This amendment is not necessary, as section 2(2) of the Bill provides that all references to higher education shall include references to research undertaken in the higher education system. Section 2(2)states, "In this Act, references to higher education shall include references to research undertaken in the higher education system." Therefore, the reference to a body in section 17(7)(b)(iv) to a body connected with the provision of higher education also includes bodies undertaking research in the higher education system.
The key point is where this is sitting alongside. This is not in a listing of higher education institutions. This is a listing of bodies with which the higher education system may be co-operating. That is the section that I am looking to amend. For example, the Qualifications and Quality Assurance Authority of Ireland and Science Foundation Ireland are being named. I was concerned that they were named while other bodies were not. With respect, the examples that I gave, of Teagasc or the Health Research Board, are not within a higher education institution. Research within higher education institutions is covered, but this is about bodies with which there will be co-operation. I believe this is inadvertent. From the Minister's response to my previous amendments, he seems to expect that groups such as the Health Research Board, the Irish Research Council and Teagasc would be part of co-operation agreements. However, the Bill as laid out does not really make clear where they would fit in.
This amendment is about facilitating these bodies which co-operate with higher education bodies. It is not about higher education institutions and the research that happens within them, although there are many interesting discussions to have on that question. That is a matter which we can bracket. There are maybe crossed wires with regard to the interpretation of the section. I think it may be an oversight. I will press it, though I understand it may be difficult for the Minister of State to take it. I hope we will be able to return to this issue when the research Bill comes through.
I move amendment No. 60:
In page 26, between lines 24 and 25, to insert the following: “(3) A person may not be appointed as Chief Executive where, in the last 3 years, they have been directly employed by the Government or a Minister thereof.”.
I am not sure if amendment No. 69 belongs in this grouping, but I will not waste our time by challenging groupings. While I think amendment No. 69 deals with quite a different point, I will not delay us by proposing alternative groupings.
Amendments Nos. 60 and 61 relate to the appointment of the chief executive under this Act. Amendment No. 60 would provide that "A person may not be appointed as Chief Executive where, in the last 3 years, they have been directly employed by the Government or a Minister thereof." The Minister of State will be aware that issues of reforms of our standards in public office and so on have been discussed, including ensuring appropriate separations, cooling-off periods, and discussions about ensuring that we do not have too immediate a transition of persons from working directly for a Minister to this extremely powerful role as created by this legislation. We know that concerns have been expressed about other boards, where there are persons who have moved directly from Government roles into the roles of these bodies which are meant to operate with a separate mandate and remit. This would try to ensure that there is a cooling-off period and that this body does not have a chief executive who was directly employed by the Government or a Minister in the previous three years.
Amendment No. 61 suggests that a person who is appointed as chief executive should not hold shares with a value in excess of €30,000. This comes back to a similar issue regarding people in positions of significant power. I will later address some powers that are ceded to the chief executive rather than the board of an t-údarás. The balance there is not right. Excessive discretionary power is given to the chief executive. We will deal with that in a separate section. The key point is that the chief executive needs to not only engage in best practice but to be seen to be fully independent and to operate in an independent way. The chief executive needs the confidence of the entire higher and further education sector. These would be prudent measures to ensure there is no risk of a perception of influence over a chief executive by Government or financial interests. Amendment No. 69 is important for the Irish Universities Association and many other bodies. It goes to that question of large discretionary powers. It will amend section 38, regarding conditions of funding, which states, “[f]unding that is provided by An tÚdarás to a funded body under section 37 shall be paid in such manner, and subject to such conditions, as the Chief Executive Officer specifies in writing to the body” by adding an important check and balance. Under this provision, the chief executive officer will be able to tell a body that the funding it gets will be subject to conditions he or she specifies or sets. The caveat I am trying to insert is simply such that where requirements are being placed on a body, that should be done with the approval of the HEA board. This is quite a significant power to be exercising. When the chief executive officer exercises such a power, he or she should check back with the HEA board and the board of an t-údarás.
Even if we look to the cross-sectional expertise we want to have on the board of an t-údarás, it is not plausible that the chief executive officer will have all the knowledge needed regarding the best path forward for every kind of further and higher education institution. If the chief executive officer's background is in science, for example, he or she may well have a good idea of certain conditions and expertise in certain financial matters but may well not have a good sense of the landscape or the impact of the conditions he or she may set in regard to another sector or institution within the diverse system that comprises all our higher education institutions. It seems the chief executive officer would benefit from going to the wider expertise of the board of an t-údarás when he or she is creating conditionalities. This is one appropriate point where a chief executive officer should check with the board.
Before I call the next speaker, I welcome, in case they leave us, a prestigious and important delegation from Hungary, whose members are in the Gallery. I also welcome to the House a distinguished educationalist, the principal of the Model School in Bailieborough, Mr. Niall McHugo, to the House. We have very important visitors in the Gallery.
I do not get the point of amendment No. 60, in particular. The Bill clearly proposes that the chief executive will be appointed by the board following the usual process that will come through the Public Appointments Service. If we inserted that amendment, it would exclude anyone who, in the preceding three years, had been directly employed by the Government or a Minister thereof. Therefore, any public or civil servant who had been employed by the Government would be excluded from applying for the role, while anybody who may have been employed by the Government under a contract of or for services to head up a task force would likewise be excluded therefrom. I get Senator Higgins's point about somebody who may or may not have had political connections, but that should not exclude him or her from applying for a particular role. The amendment would exclude anybody who works as a civil or public servant because they are all employed by the Government, and it is unfair to try to insert something like that.
Moreover, given the appointment is going to be made through the Public Appointments Service, if somebody goes through that process and it is determined on the basis of merit that he or she is the best candidate for the job, whether he or she has done work in the past for a Minister should not matter. Over the course of the pandemic, we have seen that a number of individuals have been employed in specific roles by the Government. Under this amendment, they would be excluded from appointment as chief executive having gone through a process. This is not a case of the Minister deciding he or she likes so-and-so and deciding that person will be the chief executive. There will have to be a specific process.
With regard to amendment No. 61, we have provisions in place for dealing with conflicts of interest, but under this amendment, if somebody who is chief executive were suddenly to inherit shares to the value of in excess of €30,000, that would exclude him or her from this role. We cannot try continuously to exclude groups of people from applying for particular jobs. Senator Higgins should read the process outlined within the legislation. It goes through the Public Appointments Service and the chief executive will then be appointed by the board with the approval of the Minister. This is not a ministerial appointment in the classic sense. The amendment is not acceptable.
I agree that excluding certain groups, not least people in the public service, could to some extent discriminate against those who, on the basis of merit and experience, might be capable of facing the Committee of Public Accounts. Amendment No. 69 would provide that the chief executive would not have the last say on the funding, but the chief executive is the person who is responsible to the Committee of Public Accounts. As the chief executive, he or she has to be responsible for the funding given to these bodies, which means it is impossible that the board would have to give approval for funding as well as the chief executive doing so, if I am reading the amendment correctly.
The chief executive will have control of a new body that will have many responsibilities and there will be a great deal of diligence around the role. We want to ensure the best person will come forward for the role and he or she will be appointed by the board. The onus is on all of us, but we hope that through this process, there will be a strong person to represent the body, who will look after the funding for these higher education institutes and be responsible to us as public representatives at our committee meetings here, not least those of the Committee of Public Accounts. Excluding groups without giving them the option of applying for a role, with all the processes that are in place, would be unfair.
Amendment No. 60 proposes that a person may not be appointed as chief executive where he or she has been directly employed by the Government or a Minister thereof within the preceding three years. In short, we feel this is not an appropriate amendment because it would narrow the field of potential suitable candidates for the role of CEO of the HEA.
Amendment No. 61 proposes that a person appointed as chief executive may not hold shares with a value in excess of €30,000. The CEO of the HEA is required to be in compliance with the Ethics in Public Office Act, similar to other public servants. Therefore, we believe the amendment is not appropriate. The CEO provisions are considered to be standard provisions for CEOs.
Amendment No. 69 proposes to provide that the approval of the board would be needed for setting the conditions of funding with which funded bodies must comply. The setting of conditions for funded bodies is considered an appropriate role for the chief executive officer of the HEA. The chief executive officer will be an accountable person, with comparable responsibilities to the Accounting Officer of a Department.Public financial procedures set out the Accounting Officer's responsibilities in the preparation of the appropriation account for which he or she is answerable. They also set out the other main responsibilities, which include: the regularity and propriety of all transactions of the office or Department; that proper financial procedures are followed; that public funds are properly controlled, well managed and safeguarded; and that assets are safeguarded and controlled.
The CEO, as the accountable person, is personally accountable to the Committee of Public Accounts for these responsibilities and not to the board. The code of practice for the governance of State bodies also recognises the different role of the CEO, as accountable person, and the board in respect of these issues. To have the CEO accountable for undertaking his or her financial responsibilities and accountability but without the powers to ensure that he or she can adequately meet those responsibilities would be highly detrimental to good governance and oversight of public funds. Furthermore, the Accounting Office of the Department of Further and Higher Education, Research, Innovation and Science needs to be satisfied that procedures in the agencies are satisfactory. The role of the CEO of the HEA is provided for in the Bill. The CEO can only operate within the framework and in compliance with the Bill.
It is important to note that the proposed legislation states compliance with such other conditions as may be determined by the CEO must be with the approval of the board.
Section 38(2) contains the phrase "as may be determined, with the approval of the Board". However, my amendment is to section 38(1). Section 38(2) contains the term "may include", but it is not exclusionary. There is provision under section 38(1), which I propose to amend, for the chief executive to specify other conditions in writing. That is the concern. I know of the role of the Accounting Officer. I will not dwell on it excessively now because it becomes even clearer in other sections of the Bill where we have the risk of conditions which may go beyond financial matters. Section 38(1) allows for that. There is a condition. We are not simply talking about the good management of finances. Given the very wide remit and the very wide areas covered in guidelines, codes and policies, there is a real concern that we will have conditions which could impact policy matters of a university or indeed the direction of university. That is where the concern comes. That is where having that check and balance is appropriate.
It is sad that in the past certain people who were the heads of institutions and who had key funding responsibilities in the research area were also functioning as Government advisers. These are concerns that arise. There are examples. I will not name any examples in this context. Concerns regarding close connections have been identified in the context of boards. There is an onus to make these separations very clear.
I referred to people being directly employed by the Government or a Minister. That does not necessarily mean anybody who is controlled by a Department or public body; it means those who are employed by the Government or a Minister. The Government and the entire apparatus of the State are separate. This is sometimes forgotten or the lines may be blurred, but they are quite different. I am concerned about the connections there.
I have enormous respect for Senator Dolan, but on the idea of a strong person, I do not know that we want a single strong leader in the area of our higher education institutions. We need to respect the diversity of expertise and insight that is there. My hope is that the board will reflect that. In the reply I was given, I was told extensively that the chief executive officer will come through the Public Appointments Service. Of course, the board, which decides on the chief executive officer, is directly appointed by the Minister. Therefore, we have a board appointed by the Minister making the decision. I know that the Minister intends to choose to draw on the Public Appointments Service. However, the Bill provides for the appointment of the board by the Minister and then that board determines the question. That is why we need that separation.
While I will not talk about it now, I will come to it later. The concern I have about the consolidation of discretionary power with the chief executive is matched by my concern over the extension of discretionary powers for the Minister. I worry that we might end up effectively with two individuals with an outside impact on our entire higher education architecture. In that context, I press the amendment.
Amendments Nos. 62 to 64, inclusive, contain matters to which the Minister should have regard when developing a strategy for tertiary education. Amendment No. 62 specifies that the Minister will have regard to the United Nations sustainable development goals. It is particularly important to reinforce that in view of the fact that, unfortunately, the definition of "sustainable development" in the Bill is not consistent with the United Nations sustainable development goals and predates the Rio Convention. It is a definition from the 1980s prior to any understanding that we have of climate change, even though Ireland was one of the key negotiators of the United Nations sustainable development goals. This is another opportunity to demonstrate that there is an understanding of the United Nations sustainable development goals in the development of the tertiary education strategy. It is all the more important given the failure to reflect them in the definitions in the Bill.
Amendment No. 63 refers to section 42 of the Irish Human Rights and Equality Act. Again, this relates to the public duty in equality and human rights. There is an obligation and an expectation that regard would be had to those. However, I am trying to specify that regard would be had to the development of a strategy for tertiary education.
Amendment No. 64 refers to the United Nations Convention on the Rights of Persons with Disabilities. Ireland has ratified that convention. We know there is an extraordinary under-representation of persons with disabilities, not just among students but also among staff across our higher and further education institutions. It would be appropriate for the Minister to consider that convention when developing the strategy for a tertiary education.
Amendment No. 65 again mentions the Irish Research Council. I will probably not press the amendment because I understand that we debated the matter to which it relates when we discussed specific research bodies. I will return to this in the context of the research Bill.
Amendment No. 66 provides that when assessing the demand for higher education at regional and national level and in each discipline, an t-údarás would give consideration to "the needs of society to address issues of poverty, social and economic inequality, racial inequalities and inequities and gender inequalities and inequities".It is ensuring that the collective public good needs, which are so crucial, are reflected. There is a danger in higher education that we simply look solely to the demands of industry, for example, rather than what the public wants to explore and develop and the collective public needs around equality. That is a way of giving practical effect to that public duty on equality and human rights and is an example of how that could be done.
Amendment No. 113 provides that where a governing authority is required to make a strategic plan, approved by a chief executive, that it would have the opportunity to propose amendments to it. I am really worried by this. It is really poor practice if there is a situation where a chief executive can produce a strategic plan and tell the board it must say "yea" or "nea". It mirrors some of what we have seen with a creeping tendency in many areas of "chief executivisation" of crucial and deliberative processes. I do not think it would be appropriate if, say, county managers were able to tell councillors something was "yes" or "no". It is really important that when the board of An tÚdarás is presented with a proposed strategic plan it is able to say that it is good in a particular regard but lacking elsewhere. It returns to the idea that no single individual will have the full vision for tertiary education. They need to be able to draw on constructive input from people who may have exceptional expertise in another area or discipline, or on good governance and insight into the growing trends and international expertise on students and their needs and participation, as was mentioned. It seems like a strange omission where there would be such a binary choice for the plan for tertiary education. If we are bothering to put in place a board of An tÚdarás, then let us make sure it can actually do some work for us and make proper amendments and suggestions on the strategic plan for tertiary education.
Go raibh maith agat or, as they say in Hungary, köszönöm.
I want to echo what Senator Higgins said. The national strategy for higher education, the last iteration of the aims and goals of the higher education sector in Ireland, sets out that our universities should be the engines of economic recovery. It was written after the intellectual and ethical failures of the so-called Celtic tiger, the crash and the austerity that brought us to where we are now. It is really important that we set out in the Bill these commitments to the UN Convention on the Rights of Persons with Disabilities, the Sustainable Development Goals and so on because it is vitally important that our universities are not only engines of economic recovery, entrepreneurship, innovation and all those good things, but that they are also the engines of our ethical and social recovery because we do not have to walk too far from this building to find people in doorways and parks. The front page of a national newspaper today has a photograph of a family in a tent. This is symptomatic of the ethical and social failures in Ireland. That is what a university is for: it is for speaking truth to power. A university should not be the seamless extension of the establishment with its chief executive putting forward Government economic policy. It is set out in the mission statements of Technological University Dublin and Trinity College Dublin that we must have a provocative professoriate who challenge the hegemony and the Gleichschaltung of the day which encourages things such as data centres and shiny tech industry but which does not give people a roof over their head or a place to live. All these young people from Trinity cannot hold the modest aspiration to have a home and a secure place to live in which they can make the vital life decisions that will determine the future of this republic in the next 100 years. I echo what Senator Higgins said for all those reasons. We have an opportunity to get in at the building blocks of this aspirations piece of legislation so let us get it right.
Amendment No. 67 mentions including "reflecting regional concerns". I would see our technological universities represent the regions they come from by their very nature. The new technological universities we are seeing, for example, in Athlone, Galway and Sligo are university campuses that are now in small regional towns. The agricultural campus is in Mountbellew. There is now a university campus in Sligo, Castlebar, Galway city and Letterkenny. They are in places that never before had a university. They are now competing with our university centres. We can talk about the soil and blood of the area but those technological universities have embedded within them the important priorities, particularly in areas in the west. It is around rural development and the lack of investment in services and how we fight for and ensure that we have the evidence base to go forward.
Senator Clonan spoke about shiny tech. The medtech sector in Galway alone probably provides employment for the majority of people living in a 40 mile radius.
There is a necessity for a balanced approach in all types of research. I am coming from an arts background, and as someone who did history and French, in our "brand new" University of Galway, I very much understand that. I understand how, all the elements in a university that drive it to be excellent across all topics and subjects that we must also acknowledge that the research and development aspects are also vitally important for the emergence of the region and for ensuring that people who study in an area like the west and in small towns have the potential to stay working in those areas. That is because of industries, small, local businesses, working with universities and having the potential to work with them to help them with their research and development. That cannot happen if you do not have some levels of research and universities based in those small regional towns. It is crucial that we fight for those technological universities and we do not somehow disdain shiny tech. Look at medtech and what is being done in health around telehealth at a time when we cannot recruit or retain GPs in rural areas. They need to look at how we will use technologies like that to support people living in rural areas. I would never disdain that type of research and innovation. It has been used in so many areas and sectors, including nursing, and other parts of research. It is not solely to do with science or engineering.
Amendments Nos. 62 to 64, inclusive, propose to include provisions that the Minister shall, in the preparation of the strategy have regard to the UN Sustainable Development Goals, section 42 of the Irish Human Rights and Equality Act 2014 and the United Nations Convention on the Rights of Persons with Disabilities. Environmental development and sustainability are already included in the provisions that the Minister shall have regard to. The Minister is required to have regard to any national policies that are relevant to the strategy and the provisions in the proposed amendments would be covered by these national policies. These amendments are, therefore, considered too specific for inclusion in the Bill.
Amendment No. 65 proposes to include a provision that the Minister shall for the purposes of preparing or amending a strategy consult with the Irish Research Council, IRC. The Minister can consult with other such bodies or persons as the Minister considers appropriate and consultation with the IRC could be undertaken under this provision. It should be noted that we are also working on a research Bill which includes consideration of the structure of the research sector, including the IRC.
We have a number of amendments to get through. The Minister of State will be aware that my amendments are adding things, but they are not removing anything. They are adding things that are perhaps not being given sufficient emphasis. There are areas in which we are conscious that there has been a history of neglect and there is therefore a requirement that we ensure that our future tertiary plans will not be neglected. I note that the Minister of State has not addressed amendment No. 69-----
Sorry, we have spoken to that. In terms of amendments Nos. 62 to 67, inclusive, the issues that we are talking about are around equality and the sustainable development goals. I will not rehash this, but the definition of environmental development and sustainability as it stands in this Bill has no relation to the sustainable development goals. It is a definition from the 1980s and it is previous to even the first conference on climate change, which was at Rio. It is dated, it gives no historical responsibilities and no integrated approach. To my mind, it is bizarre that that definition has gone into this Bill. There are other Bills from other Government Departments that have included definitions of sustainable development and that have explicitly mentioned the sustainable development goals. That is why I need to try to insert it. The reference in the Bill does not cover that issue. I will not dwell further on these except to say that each of these areas that we have addressed are areas of society and social need. They will be priority areas if we are to move forward as a more equal State. That is why we are trying to ensure that they will be reflected.
I note that I do not think I got a detailed response or a "Yes" or "No" response on the question on the amendments on the strategic plan for tertiary education. Could the Minister of State comment on that amendment, if he is coming back in?
I made a comment regarding amendments Nos. 113 and 141, which are part of this grouping. On amendment No. 113, the governing authority has the authority under section 34(2) of the Universities Act 1997 to approve a strategic development plan "without modification or, after consultation with the chief officer, approve the plan with such modifications as it thinks fit". Therefore, the intent of the amendment is deemed to be reflected in the Bill.
Amendment No. 141 proposes to amend the provision on the consultation by the NCAD on its strategic development plan. The amendment proposed is to change "students or the student union" of the institution to "students and the student union" of the institution. This policy-----
I move amendment No. 66:
"In page 33, between lines 33 and 34, to insert the following: “(v) the needs of society to address issues of poverty, social and economic inequality, racial inequalities and inequities and gender inequalities and inequities,”."
I move amendment No. 68:
"In page 37, to delete lines 32 to 34 and substitute the following: “(6) Nothing in this section shall be taken to mean that a designated institution of higher education, any other higher education provider or any other education provider, body or person—(a) shall be allocated funding by An tÚdarás in any financial year,
(b) is prevented from deciding on the courses and programmes it will maintain, or the number of student places for each such course or programme.”."
I move amendment No. 77:
In page 47, after line 41, to insert the following: “(7) Prior to a disclosure of personal data being made under this section, a designated higher education institution must carry out a data protection impact assessment.”.
These amendments relate to good practice in data protection. In her engagement on the Online Safety and Media Regulation Bill 2022, the Minister for Tourism, Culture, Arts, Gaeltacht, Sport and Media, Deputy Catherine Martin, accepted amendments in respect of this matter and recognised the importance of ensuring appropriate data protection impact assessments at different points. It is good practice to have those. Amendment No. 77 would ensure that we remembered the importance of data protection impact assessments prior to the disclosure of personal data.
Amendment No. 78 is important because it would ensure that data provided by students under section 49, which deals with the supply of personal data, should not be used for commercial purposes. This is meant to ensure that there is no risk in commercial partnerships with universities, which have an extraordinarily large amount of data about large and important demographics, of those data being exploited for commercial purposes.
These are safety net amendments in respect of data protection. One hopes that neither would create adverse circumstances, but we are trying to copper-fasten that protection.
I thank the Senators for their contributions. I appreciate what Senator Higgins is trying to do with these amendments. I assure the House that all Ministers take data protection assessments as well as data protection seriously and are governed in our duties by the GDPR. We sought the views of the Office of Parliamentary Counsel, OPC, on this matter and consulted the Data Protection Commissioner during the development of the Bill.
I am satisfied that amendment No. 77 is not necessary, as section 49 is subject to the Data Protection Act 2018. We have received legal advice that the Act already provides for data protection impact assessments.
As Senator Higgins outlined well, amendment No. 78 proposes to include a provision whereby personal data obtained under this section shall not in any circumstance be used for commercial purposes. The legal advice we have received from the OPC is that this amendment is not necessary because the section is subject to the 2018 Act, which provides that data can only be processed by the HEA as necessary and in a proportionate way for it to perform specific named functions.
There have been partnerships, even involving the Government, with bodies where serious concerns have been raised, for example, relating to DNA processing and so forth. There is a history of some unfortunate partnerships between the State and commercial entities. That is why I brought forward these amendments. The Minister referred to functions, but those functions also provide for various partnerships. The danger is that they may be commercial partnerships. In that context, I am trying to add a safeguard within such partnerships.
This is an issue to which we must return. It is not enough to point to the GDPR, given that the GDPR provides exemptions. It is a question of how those will be applied and where the balancing will be. Under the research legislation, perhaps we can revert to the issues around commercial purposes as they sit within research or partnerships. We have seen some examples of poor practice. Students are sharing their data with their respective higher education institutions, which are then sharing those data onwards. It is important that we be clear around the purposes in that regard. Simply saying that the purposes are within the functions is a wide statement. The persons giving the data need to be clear on those purposes.
I accept that this is a complicated matter. It is not as simple as saying that the GDPR is law - I am familiar with the 2018 legislation - but we also need to examine how it is applied in practice and learn from poor instances of that. Perhaps we can revert to this matter under the research legislation.
I am happy to explore in detail the important broader issues when the research Bill is before the House next year. For the purposes of this legislation, though, I am satisfied, from consulting with the Data Protection Commissioner's office and seeking the legal advice of the OPC during the development of the Bill, that the amendments are not required due to the 2018 Act's provisions on data protection impact assessments.
Amendments Nos. 79 to 83, inclusive, 85 to 87, inclusive, 111, 111a, 111b, 111c, 112, 115b, 115c, 115d, 116, 137b, 137c, 137d, 139, 139a and 139b are related. Amendment No. 86 is a physical alternative to amendment No. 85. Amendments Nos. 111a, 111b, 111c and 112 are physical alternatives to amendment No. 111. Amendment No. 115c is a physical alternative to amendment No. 115b. Amendment No. 137c is a physical alternative to amendment No. 137b. Amendments Nos. 139a and 139b are physical alternatives to amendment No. 139.
Amendments Nos. 79 to 83, inclusive, 85 to 87, inclusive, 111, 111a, 111b, 111c, 112, 115b, 115c, 115d, 116, 137b, 137c, 137d, 139, 139a and 139b may be discussed together by agreement. Does anyone want me to read all of that out again?
This amendment, which is to section 61 on the strategic development plan of higher education institutions, would have the effect of changing the wording from "students or the students' unions of the institution" to "students and the students' unions of the institution".We propose that it not be one or the other but both to ensure the fullest range of feedback to a governing body or chief executive on strategic development.
To put the amendment in context, I echo the sentiments expressed by Senator Dolan about the specific regional nature of universities. For example, we had a discussion this morning at committee about the decision of the Department to take the testimony of survivors of mother and baby homes and lodge that testimony in the National Archives of Ireland in the national commemoration centre. That is an example of a case where rather than outsourcing such investigations, had one been undertaken, to a senior counsel, we have teams of trained investigators in all of our universities and technological universities that can carry out this type of social research. That kind of work needs to be explicitly articulated in the strategic plan. If you exclude a students' union or students then, potentially, you debar a whole tier of students, for example postgraduate and postdoctoral students, who might have a view in this area and see ways where the university might tailor its strategic plan to the contribution to knowledge in areas other than the natural sciences or technology.
I reiterate that I do not denigrate those areas of investigation. I wish to say that very often, human sciences and the arts are overlooked because of the overarching economic imperatives of the day or whatever. Research students, postdoctoral students and the whole lot are part of a community of people who can very actively feed back to management ways to develop a strategic plan. It would not be good if we did not have their voices, plus the traditionally provocative voices of the students' unions, which in the context of a university is a good thing and necessary for the vibrancy of the university. So it is for those reasons that my colleagues and I have tabled our amendment to include both. It is not an either-or situation but a case of "and".
I have some sympathy for the proposal by Senator Clonan. I would almost have preferred if the wording of the amendment stated "students of the institution", which would have incorporated students' unions. The way that the provision is phrased is "students or the students' unions". My fear is that if a governing body or the management of the institution interpreted it in a particular way, then they could look to play the students' union off against the student body or, if they sought a particular outcome, they might decide to go down a particular avenue. I am open to hearing the Minister's response to the amendment but I think there is a point for replacing the word "or" with "and". As a strategic development plan of an institution is one of the most important documents for which a governing body and management is charged with developing over a period, the consultation should be as wide as possible. I am just not certain about the wording, "or" and would be a little more comfortable with the proposed amendment but I am happy to hear suggestions from the Minister.
I agree with Senator Malcolm Byrne. I have been a member of the údarás of the National University of Ireland Galway, which is now the University of Galway, and I think that the voice of students is essential. PhD students, by virtue of their other roles are often members of these boards, which is effectively what they are. The voice of the students' union is also really important. I am anxious to hear what the Minister will say and reiterate that we must make sure that this voice is retained.
Amendment No. 80 provides that in preparing a strategic development plan under section 61, designated higher education institutions must consult with trade union representatives of both academic and professional staff. It goes without saying that union representatives are important in the conversation on boards. As for the potential for them not to be represented on boards due to the way boards are structured, we must find other ways in the legislation to make sure that they are an integral part of the process within a university and the strategic development plan is one such area.
Amendment No. 86 seeks to insert a new paragraph into subsection (5) to provide for an equality statement of a designated institution of higher education, to which this section applies. The new paragraph shall specify the policy of the institution regarding the protection of the mental health and well-being of its students and staff, and the supports in place within the institution to promote positive mental health and well-being.
Last month, the ESRI launched a report entitled, Disrupted transitions? Young adults and the COVID-19 pandemic, from which we know that poorer mental health during the pandemic reflected disruption to the employment, education and day-to-day activities of young adults. Also, before the pandemic hit, 63% of these 22-year-olds were in full-time education or training and so shifted to remote learning.
According to the report, the vast majority reported having the electronic devices they needed for remote learning and were enrolled in institutions that offered live online lectures or classes. However, half of them did not have access to adequate broadband and a quiet place to study and only 30% received regular feedback on their work. Over half, or 57%, found it difficult to study while learning remotely and this was linked to a greater risk of depression. In contrast, the people who had more interaction with their institution, and the resources they needed to study, fared better. The ESRI also found that over half of the women who were 22 at the time were over the threshold that defines depression, while from 2018 to 2020, the number of young men who were deemed to be depressed increased from 22% to 40%.
Amendment No. 87 seeks to insert a new paragraph into section 66(2)(5) provides that an equality statement of a designated institution of higher education, to which this section applies, shall specify the policy of the instituting relating to the ending of academic precarity. Precarious employment in Irish colleges leaves many academic staff unable to secure bank loans, afford healthcare, find accommodation, start families or get above the poverty line, according to the Irish Precarity Network.
A group of academics, researchers and educators have warned that precarious employment has had, and is having, a devastating impact on the Irish education sector, as well as those who work on temporary contracts that range between three and 12 months. There is also a large and growing number of people who work on an hourly basis and are paid a flat fee per class. In respect of PhD students taking the Irish Research Council's stipend of €16,000, for example, this equates to just over €1,300 per month or €300 per week. If PhD researchers work a 40-hour week then that means they receive €7.70 per hour at a time when the current minimum wage is €10.10 per hour and the living wage is €12.90. However, the latter figures are normally not used in the context of PhD students as they are not classed as workers in Ireland.
I echo the point made that there should be no risk that students' unions are not consulted. The Bill clearly outlines a situation where there may be that risk and later we will come to the question of the very strong risk that students' unions may not be represented on the boards of governing authorities. Again, that is an avoidable risk.
My colleague, Senator Ruane, has spoken very well to amendment No. 86 in terms of mental health.
Amendments Nos. 80 and 87 highlight the importance of trade union consultation and engagement and recognition of precarious employment as a key issue of equality. Precarious employment should be reflected in the equality statement and policies of a university.
I refer to an issue that is not just an equality issue in terms of those who wish to access education. There are huge inequality issues, equality issues and precarity issues for those who work within our institutions be they employees, PhD researchers and those on teaching contracts. Can the Cathaoirleach confirm whether amendments Nos. 111a, 111b and 111c are included in this group of amendments?
I will speak to this set of amendments. This is one of the aspects of the Bill about which I have the most serious concern. It is probably one of three or four areas that I urge the Minister to address and I ask because this area creates a significant risk of overreach.These amendments relate to a requirement that occurs in multiple sections, that is, the requirement of governing authorities of universities or higher education institutions to put in place appropriate systems, procedures and practices to implement, and report on compliance with, the policies, whether set out in codes, guidelines or other documents or any combination thereof, of the Government or a Minister thereof to the extent those policies affect or relate to the functions of the university. This section would provide for a requirement of higher education institutions to implement, and report on their compliance with, policies of the Government or a Minister thereof. There would be a direct requirement for our higher education institutions to implement, and report on their compliance with, direct policies of a Minister. My amendments would confine those policies.
In Ireland, ministerial edict or a memorandum from Cabinet is not something with which bodies have to comply. We have processes whereby Ministers seek to put proposals through the legislative process, either as primary legislation or as a statutory instrument. They may be given power by the Oireachtas in regard to a policy area and the powers to regulate. Alternatively, we have the mechanisms put in place under section 143, whereby power will be given under the Bill for the Higher Education Authority board to produce codes and guidelines. They are all measures statutorily provided for in law.
This requirement, however, will not be confined. That requirement for implementation and compliance, which is being placed on our higher education institutions, will not be confined to matters set out either through law or through a decision of the HEA board. Under the Bill, as it stands, the powers will apply to any document of the Government or a Minister thereof. Indeed, it is important to note it will not solely be the Minister for Further and Higher Education, Research, Innovation and Science, who is "the Minister" referred to throughout the Bill, but rather any Minister of the Government.
I do not see what is contained in the Bill to prevent this applying to any memorandum or policy document of the Government. We know from our Constitution that the Oireachtas is the primary legislator. The Government does not get to set policy without going through this elaborate governance structure we are putting in place with the HEA or through the legislative process we have. We should not have a shortcut whereby a policy of a Minister or the Government can become something higher education institutions will be required to implement and report on their compliance with.
I do not believe this is intentional but it is significant. We have created a significant jeopardy. I have seen the Minister in many ministerial roles over the course of our time in the Oireachtas together, and I have seen many Ministers for Education come and go. As it stands, we are providing in law that a Minister of the Government, or the Government itself, could produce a policy document and there would be this requirement for persons to implement it, without it having gone through the filter of either the Oireachtas or the HEA board, as provided for in section 143. To be clear, that section is not an ameliorator of these sections, section 76 and others, because section 76 is not conditional on section 143. I believe my amendments are very constructive. I have come at the issue in a few different ways because this is a needless jeopardy. I do not believe it is one the Minister plans to exploit in some nefarious way but I believe it is open to inappropriate use and overreach. My amendments take three approaches. They are all good-faith attempts to address what I think is a serious problem with the Bill. One approach, which is similar to that which I took in the original amendment, amendment No. 111, would make it clear that the powers apply only to statutory provisions. Therefore, the higher education institutions would have to implement, and report on compliance with, policies that have a statutory basis only. Of course, that statutory basis would cover section 143 because that section will be legislation, so it would cover anything that might emerge from that section. This is probably the cleanest and best way to address the concern.
Nevertheless, I have also included proposals whereby it would apply similarly to such codes or guidelines as have been approved by the board of an t-údarás, effectively pointing to section 143. While there should be a requirement to implement and report on compliance with codes and guidelines, they should be codes and guidelines approved by the board of an t-údarás. If those codes and guidelines were approved by that board, that would mean all those due and appropriate processes set out in section 143 would have been applied to them.
A further, important amendment and concern relates to the fact that while the phrase "the Minister" is used in most places throughout the Bill, "a Minister" is used in respect of this issue of the requirement for implementation, and reporting on compliance with, his or her policies. I accept the Minister will respond by saying this applies only as those policies affect and relate to the functions of the university, but that is very wide. Of course, anything a university will be asked to do relates to the functions of a university, but the point is that individual Ministers should not be able to set policies and, unmediated by the HEA or by proper process through the Oireachtas, simply have those policies be something that individual institutions will have to comply with.
There is a severe risk of political capture and we need only to look to other countries in Europe where we have seen the overreach of governments in respect of the repression of academic freedom. With all the due regards we have, such as mechanisms and industry needs to consider, it should not be the case that the Minister for Enterprise, Trade and Employment, for example, can have a policy on what he or she wants to see coming through from a higher education institution in a way that might have an impact and whereby it might become a policy a higher education institution would have to implement or report on compliance with.
This is significant. Good intent and all of that is fine but we need to strive for legislation that is clear and copper-fastened and this legislation has been drafted in a dangerously ambiguous way that creates unnecessary and avoidable future risk. I strongly urge the Minister to take on board either the safety net of the HEA board or - I think this would be the cleanest way - my original amendment, which refers to statutory provision. The phrase, "statutory provision", does not mean it would have to be law. Rather, it would cover codes and guidelines developed under section 143. That is probably the cleanest way to address this dangerous provision. I hope the Minister will take this on board. These amendments have been made in good faith and with genuine concern.
This is a large grouping, so I ask Senators to bear with me. I begin with the issue of students' unions as raised by Senator Clonan and other amendments in this regard.At this Stage of the legislation, I suggest that we need distinct, separate legislation regarding student unions. I had this conversation with some student union representatives. I welcomed the president of the Union of Students in Ireland, USI. We have all debated in this House, the other House, and in engagement with USI and others, how we properly address some of the legitimate issues and concerns that student unions have about ensuring absolute autonomy, ensuring proper representation and having absolute clarity about the rights, powers and definition of a student union. People can accept this in good faith or not, but I have genuinely tried to engage at many stages of this Bill to try to define student unions and such in a way that has been sought for a long time. I have received clear legal advice, which I put on the record of the House on Committee Stage, so I will not repeat it now. The advice stated that this Bill is not the appropriate place to define student unions and an unintended consequence of defining certain things in this Bill would be to narrow the scope of what a student union does.
I suggest in good faith, on the record of this House, that we should develop separate legislation specifically about student unions. We should seek to co-design it with student unions. I am happy to commence that process with USI. A full assessment with national and local student unions and other stakeholders would be required ahead of the drafting of the Bill. It has come up too many times in this House, the other House and in my engagement with student union representatives. The Oireachtas and Government have a duty to respond and to work with the student union movement to develop separate, distinct legislation on the definition of student unions, their powers, autonomy and so on. I wanted to say that about how we should deal with this more broadly.
This Bill tries to increase the voice of students and student unions in a number of ways, whether in section 33, 34, 35 or 46, in the strategic development plans of HEIs, the equality statements of HEIs, or in section 143. These are all places in the legislation where we have made a conscious and explicit effort to empower the voice of students and student unions. When student unions and USI came to tell me that we had got the numbers on the governing authorities wrong, I accepted that because they were right. We were proposing two. While I argued on earlier Stages of this legislation that having two would have increased the percentage of students in all but one governing authority after the legislation passes, the student unions outlined the practical issues regarding postgraduates, undergraduates, and the diverse voices that they wanted to include. We tabled an amendment and changed the draft law to increase the number to three. That context is important. There are specific issues that the student union movement wants us to go further on and to get right. We have approached this Bill with that policy intent. Where issues were highlighted about the composition and size of the governing authority, we responded by increasing the number to three. That means that the percentage of students compared with the rest of the members will be higher on every governing authority after this legislation passes. One would be forgiven for not hearing that fact, since I might be the only person saying it. I will say it because it is true. It is important and right. I think it is a success from the engagement. We will get to the composition of governing authorities in a moment.
We will get to that in a moment. I disagree. That context is important because that is the policy intent. On the issue of students or student unions, the definition of students set out sections 80, 90, 112 and 128 includes the student union. The interpretation of the word "students" is a student or student union. I sought legal advice on this. The reference to students means all students. This legislation means that the university or higher education institution has an obligation to engage with the student union or every single student in the university or higher education institution. It is not a case of having a little hand-picked group of students who are not the student union but who the institution says it wants to talk to. That is not the policy intent or the legal interpretation of the word "students" in the legislation. It is also important to note that definitions are included in the Bill. One states, "“representatives of students” shall include officers of a national student union in their capacity as such officers." The Bill states, "“student” means a person registered as a student by a higher education provider with that provider." It defines student union too. Issues arise in this legislation which deserve separate, stand-alone legislation. The Houses of the Oireachtas, perhaps through a committee engaging with student unions, could do good, meaningful work to bring that forward. I am happy to provide the support of my Department on that and to work with people on it.
I have largely dealt with amendments Nos. 80 and 81 during previous discussions of sitting county councillors and trade unions. My answer on that stands, as do my answers regarding previous amendments.
I come to an important issue raised by Senator Ruane. Senator Higgins's name is on the amendment too. It relates to positive mental health and well-being. I acknowledge the good, important work going on in our higher education institutions to promote positive mental health and ensure that our institutions have appropriate policies in place to address this issue. In this legislation, we have not, for better or for worse, set out all of the specific areas. We have not set out many different specific policies, from student freedom to express views, sustainable development, ethical funding and research integrity, because the intention is to use section 143 of the legislation to bring forward those codes and guidelines. My Department and I consider it more appropriate to address the intent of the proposed amendment through the implementation of the legislation. The issue of academic precarity is similar.
I come to the specific issues raised by Senator Higgins. I thank her for raising these. While we may not agree, I accept the way she tabled these amendments in good faith. I do not doubt that at all. I will not list all of the amendments because it is a long list. These new amendments, starting with amendment No. 111a and running to amendment No. 139b, propose to amend the provision that the governing authority or body of universities, technological universities, institutes of technology and National College of Art and Design shall satisfy itself that appropriate systems, procedures and practices are in place in order to implement, and report on compliance with, the policies of the Government or a Minister of the Government to the extent that those policies may affect or relate to the functions of the university. The wording of this section was changed after engaging with the sector. After talking to the universities, through their representative body, they sought nuanced language. The original wording was, "in order to enable compliance." They specifically requested that the language be more nuanced and changed to "in order to implement, and report on compliance with." Senator Higgins was good enough not to suggest it, but this was not a view in the Department that we must include an issue about compliance. We engaged with the sector. It suggested that the wording of "in order to enable compliance" was too rigid and too far-reaching. We amended the language to "in order to implement, and report on."
There was a good meeting with some Senators, including Senators Higgins and Ruane, in July. Issues regarding the provision were raised. It was a useful engagement. My Department sought legal advice as a result of that in order to clarify the intent of the provision. The legal advice is that this is not a substantive provision conferring any new power on a Government or on a Minister of the Government to issue codes, guidelines or other documents to universities that would place an obligation on universities to implement them. I will come back to the term, "a Minister of the Government", in a moment. It is still an important provision. The Minister for the Environment, Climate and Communications has every right to ask how our publicly-funded universities are getting on with our climate action plan. No Minister can act in defiance of the laws passed by the Oireachtas. That is the check.
There are times where a Minister of the Government has every right to ask what publicly-funded institutions, whether they are autonomous or not, are doing to fulfil legal obligations that this country has. There could not be a more important or obvious area than climate action, where the Minister for the Environment, Climate and Communications, rather than me, has a responsibility. The Government may wish to see how all sectors are getting on, including schools, universities or Garda stations, with the work that they need to do to be compliant. That is where this comes from. It is not unusual. I think it is important. Heaven forbid, it might even be considered whole-of-government thinking.The purpose of the new subsection (1A) is to provide for an obligation on the governing authority of a university, technological university, institute of technology or the National College of Art and Design to satisfy itself - which is important because this legislation is about building up internal governance - that appropriate systems, procedures and practices are in place to implement and report on compliance with the policies of the Government or a Minister of the Government to the extent that those policies may affect or relate to the functions of the university. The Senator predicted I would say those last few words. The phase "to the extent that those policies may affect or relate to the functions of the university" means that the types of policies contemplated are provided elsewhere under separate statutory provision. I would, of course, give the example of section 143, which empowers an t-údarás "to prepare or adopt and issue guidelines, codes or policies". I have received legal advice that this is not a substantive provision conferring any new power. Powers exist elsewhere in statute, through an t-údarás or section 143. This is a reporting mechanism, a mechanism for looping back in, within the legislation. I have received advice-----
It is firm language. I have also received advice from the Attorney General and the Office of the Parliamentary Counsel. I accept the seriousness of the issue the Senator is raising. That advice is in line with the response I have just given. The legal advice is that it is not a substantive provision conferring any new power on a Government or a Minister but rather it is reporting against powers that already exist, either in legislation or in statute. I can only share with the Senator the legal advice.
I could adopt a certain approach and say we do not share legal advice. I am trying to be transparent with the House. I have also sought legal advice on the 11 separate amendments relating to institutions of higher education having systems, procedures and processes in place to implement and report compliance with policies. Three of the proposed amendments refer to statutory provisions, along with the codes and guidelines. Apart from the fact that the intention is that the documents are non-statutory ones, and I accept the Senator outlined her view on that a moment ago, it is often the case that statutory provisions contain their own provisions, requirements and processes regarding compliance with them, and reporting on the compliance. It is clear the Senator and I do not agree although I accept her good-faith concerns. I am satisfied based on the advice of the Office of the Attorney General and the Office of the Parliamentary Counsel, the work of my Department and our engagement with the sector that this is a reporting provision and that the comply and explain provision within the Bill is the overarching infrastructure of this legislation. There is no statutory offence with non-compliance. This whole Bill is built around comply or explain. That is an important point to make. This is a reporting provision. I do not think it is unfair or unreasonable that institutions which have received large swathes of public funds - and will be receiving more, I am pleased to say - are asked to report on how they are getting on with implementing policy. That policy is underpinned in various places by statute, law and the Oireachtas. There is clear legal advice that this is not a substantive provision conferring any new power on the Government or the Minister.
I respectfully disagree with the Minister. That is not a bad thing. Disagreement is the engine for arriving at the truth. The truth of the matter is that in respect of students unions, this Bill, as proposed, is not a step forward. It is a retrograde step. It is a step backwards. The Universities Act and the Technological Universities Act explicitly guarantee the representation of students unions on governing bodies. This Bill, as currently worded, does not. That is a step backwards. Senators Malcolm Byrne and Pauline O'Reilly in a collegial way agreed that the use of the word "or" instead of "and" contains within it the semantic potential for excluding students unions from consultation and from other areas. I ask the Minister to reconsider those amendments.
There are representatives of students unions here tonight, which shows their commitment to all of these processes. Members and leaders of students unions are the people who go on to become Deputies, Senators, taoisigh, tánaistí and the members of our highest professional bodies. If we in any way further exclude them and curb their participation in the life of the university with the stroke of a pen, we are sending a message to the members of that generation, who are already locked out to a certain extent, that they are further removed from the beating heart of the universities. They are the most important part of that community. I echo Senator Higgins's call for the Minister to accept the amendment. I accept his reassurance that he will revisit the question of students unions on a legislative basis, but for the purposes of the discussion, that does not meaningfully respond to the amendments set out.
I have great time for Senator Clonan. Disagreement is not a bad thing but I do fundamentally disagree with him on this point. I ask people to accept my bona fides that we are going to bring forward legislation. Nobody in this House has bothered to do that in the past. I do not mean the Members of this Oireachtas and I do not say that about anybody in this House. We, as an Oireachtas, have never done this before. We have never before brought forward a students union Bill. I am saying we should do that and get it right. There have been good ideas from all sides of the House in respect of some of those issues. We should co-design the legislation with the students union movement. We should get on and do it. I believe that.
I do not mean to be disagreeable but I will turn to consider the definitions. Senator Clonan was not a Member of the House when we voted on the Technological Universities Act, but many people here were and voted for it. In the Technological Universities Act 2018, a student is defined as a person registered as a student or a full-time office of the students union. There are different definitions in the Universities Act and the Institutes of Technology Act. This is part of the challenge. There has not been one definition in the sectoral legislation. There are three different definitions.
We are trying to get this right. There is also flexibility, which is not a bad thing in respect of students. Section 16(2)(d)(iv) of the Universities Act provides for either two or three students who are elected officers of the students union. I know of students unions that might want their representatives to be chosen by the students union but not to be an elected officer. There are many examples where a students union might want-----
It does, but the Universities Act does not. Trinity College Dublin and University College Dublin are not governed to that effect. The panel the Senator represents in this House is not governed by the Technological Universities Act. It stands over a situation where one must be an elected officer of a students union. Many students who are delighted to be members of students unions and delighted to vote for the officers of the students union would also like to have a role in representation. Many officers would also like that. We are providing a flexibility here in allowing for a full-time officer or a student of the institution. I do not think that is a bad thing. I will return to this House in good faith and engage with the Oireachtas, and perhaps an Oireachtas committee, to see how the broader issues around students unions can be dealt with in other legislation.
Garret Ahearn, Paddy Burke, Jerry Buttimer, Malcolm Byrne, Maria Byrne, Micheál Carrigy, Pat Casey, Shane Cassells, Lisa Chambers, Martin Conway, Ollie Crowe, Aisling Dolan, Mary Fitzpatrick, Gerry Horkan, Seán Kyne, Tim Lombard, John McGahon, Ned O'Sullivan, Joe O'Reilly, Pauline O'Reilly, Mary Seery Kearney.