Wednesday, 28 April 1971
Dáil Eireann Debate
Deputy FitzGerald seemed to express surprise that I should be unable to be in sympathy with this. He seemed to suggest that I was, in some way, falling down on my trade union responsibilities in not feeling that causes should be stated. I profess, quite frankly, that at that point my degree of exasperation at the protraction of this debate and with arguments of this kind did rather boil over in me but may I recapitulate on the three arguments I was making at that time?
First, I do not think it is in any way useful to introduce the phrase: “for causes stated”. It could be highly invidious that this should be so. There is a matter which may come up on the Adjournment tonight and which we have been discussing in this House fairly extensively—the dismissal from employment of an employee of the National College of Art. The Minister refused to state precisely on what grounds the person in question had been dismissed. In my opinion he refused, quite correctly, because it could be highly invidious to have the terms of disemployment of a person stated in this House. That is one reason why I see Deputy FitzGerald's amendment as having no particular value.
Secondly, I am quite unable to understand the neurosis about the role of the Minister and the Department which seems to inform an awful lot of Deputy FitzGerald's thinking here. I belong to a party which is consistently urging greater Parliamentary control of the State-sponsored bodies through committees and responsibility to the Dáil and that kind of thing. I do not see how I, as a member of such a party, can argue that the Higher Educacation Authority should possess such a degree of autonomy as to hire and fire its servants for causes stated without reference to the person who is, in the eye of the community, its paymaster. Personally, if I were in the position of being an employee of the Higher Education Authority I would much rather feel that I could fall back on the interest of the Minister than that I was simply bound by the authority's capacity  to state for what causes I was being dismissed. As a university employee, I would much rather be in a position in which I had recourse to the Minister than in the position of quasi-autonomy which I am supposed to enjoy at the moment.
Thirdly, I agree with Deputy Tunney's remarks in that discussion. We are all treating this debate as if we were debating whether Ireland should declare nuclear war on Russia in the morning or something like that. Let us keep firmly in our minds that public money is being spent here on the work of this education authority and ultimately, no matter how much I may from time to time criticise the Minister and his Department, the fact remains that the final and ultimate buck stops on that Minister's desk and that is as it should be, in my view, whether it is Deputy Faulkner, Deputy FitzGerald in years to come, myself or Deputies who will be born after we are all dead. It remains true that the Minister ultimately has the sanction of the endorsement of, let us say, in effect, half a million people. He is perfectly entitled to maintain an ultimately controlling interest in issues of this kind. At the moment we are reaching a point of the exclusion of the Minister from this authority which I think is quite ridiculous. I think Deputy FitzGerald is becoming totally neurotic about the Higher Education Authority here. He is trying to have it both ways. I agree with the Minister. At one point he wants to increase the autonomy and power of the authority if he thinks that will diminish the power of the Minister; at another point he wants to diminish the autonomy and power of the authority if he thinks that will enhance the powers of the university. This is totally ridiculous.
My colleague, Deputy O'Donovan, and myself have agreed to go our separate ways on this. This is fair enough. This is not a Bill involving matters of major principle which should be necessarily Whip-bound. Let me say here that I think remarks referring to the members of this authority as “Quislings,” are quite wrong. I regard them, on the whole,  not in every case, as a well-chosen body of men doing an excellent job of work. There are a couple of major exceptions in this Bill with which I disagree, as, for example, the issues on which we have divided this House and matters like student representation. Apart from that, I regard this as a relatively minor Bill simply to give statutory existence to a body which has already been in existence for some considerable time and has been doing a good job of work during that time. Anyone who argues that the Minister should have come to this House first to appeal for statutory recognition of the authority and then establish it knows little of the academic mind because if he had done so he would still be in this House and we would still not even have a named authority. It is the hen and the egg situation and I think the Minister went the right way about it. I wish the members of this authority good luck in their work.
I should like to say one thing that is not intended to be personal to my colleagues—colleagues both in the sense of being fellow Dáil Deputies and colleagues also in the sense of being university academics, Deputies O'Donovan and FitzGerald. I think we should at all times remember that we are not here as spokesmen for our universities and I think a discussion which shows an over-familiarity with the needs of any particular university is not one which should be paraded on the floor of this House. Certain points of this debate reached a level at which I could practically make a speech about my own salary in Trinity College and why it should or should not be increased. I have no intention of sinking so low as to do that. I cannot support this amendment because at this point Deputy FitzGerald has reached a level of nit-picking——
Dr. Thornley: No, I am tempted to repeat my entire speech. At this point, the amendment having been thrown out, we should pass the section, tell these men to get on with the good work and stop splitting hairs.
Minister for Education (Mr. Faulkner): I just want to make a few brief remarks on this. I have spoken on the various subsections and the amendments to them. On the last day, Deputy FitzGerald treated us to a rather lengthy lecture and I felt he was making a mountain out of a molehill. I want again to say that An tÚdarás are an autonomous body and to suggest that the phrase “subject to the approval of the Minister” takes away the autonomy of this body is simply ridiculous.
I want to stress again that it is An tÚdarás who will appoint the individuals to the posts and not the Minister. As I see it, An tÚdarás will send proposals to the Minister as to the categories and the numbers they deem necessary. When these have been agreed to, the remuneration can be settled and the appointments made.
Deputy FitzGerald asserted that provisions similar to those in section 14 did not appear in any other legislation except that introduced by a previous Minister for Education. I would ask him to look up the Act setting up the Arts Council in 1951, introduced by a Fine Gael Taoiseach. As far as I can remember, Deputy FitzGerald made reference during his speech to the Act setting up the Pigs and Bacon Commission and pointed out that it was not similar to anything we had in any Bill introduced by Ministers for Education. It appears to me that he quite obviously did not read the Act——
Mr. Faulkner: The Department of Education have no connection with the Arts Council. They are still subject to the Taoiseach's Department. I could mention others, but I think that is sufficient. Deputy FitzGerald followed the same line in relation to the appendix and he said he knew of one case in which there was a breakdown of the figures in relation to a grant-in-aid, but when I brought the British Book of Estimates to his notice he qualified it by saying that he meant this country.
Dr. O'Donovan: I do not think anybody in the House can accuse me of being unduly favourably disposed towards Deputy FitzGerald but he has all my sympathy in this matter. Unfortunately, Deputy Tunney is not here. He made a most absurd and ferocious attack on Deputy FitzGerald's approach which suggested that Fine Gael had a different approach to officers and servants to what the party of reality have. It drew a rather long statement from Deputy FitzGerald, which is very natural.
Dr. O'Donovan: What Deputy Tunney said would set anybody off. Of course, if Fianna Fáil do something outrageous it is forgotten but if there is a little mistake made by anybody here it is something ridiculous. Deputy FitzGerald did not make any mountain on that occasion. I propose on the next section to develop the point about officers and servants. Subsection (4) of this section uses the term “subject to the approval of the Minister, given with the consent of the Minister for Finance”. Again, we have this long  train. There is an awful lot of rubbish put into Bills by the Department of Finance. The Department of Finance have control of the Estimates Volume and while they have, they have, in essence the overall control of expenditure. Of course, in recent years there is evidence that they had no control at all.
Deputy Thornley and I have agreed to disagree on this matter. It is easy to say that the claims of institutes should not be considered but we get very little chance of discussing Estimates in recent years in relation either to finance or education.
Dr. O'Donovan: I am very interested in education. I do not know how long the debate was but I did not speak on education. There must have been some reason for it. Next time it comes up I will enlighten the Minister by some further views of mine on education. As I have said, Deputy FitzGerald has my sympathy on this ferocious attack made on him by Deputy Tunney which had no relation to the Bill.
Dr. FitzGerald: I do not want to detain the House at this stage. I will only briefly re-state the position. Deputy Thornley described me as a neurotic nit-picking, mountain-making academic introvert. That was Deputy Thornley's phraseology. Deputy Thornley and I are occasionally guilty of hyperbole, sometimes at each other's expense, and I do not think either of us takes it too seriously. I am, however, disappointed that on this issue he has allowed a certain irritation with the exponents of academic autonomy to mislead him.
I want to re-state that there is nothing illogical or facing both ways about seeking to preserve the autonomy, first, of the universities as far as possible from State authority, and the Higher Education Authority from the Government. Maybe Deputy Thornley thinks it is a very non-socialist philosophy——
Dr. FitzGerald: ——and he may not approve of it, but it is a consistent philosophy. In educational matters, the further away you keep the Government the better. There are other areas where greater Government intervention might be desirable—on this, Deputy Thornley and myself might agree—but I think in this area it is consistent to try to ensure that while you have adequate co-ordination and control, this is done by the buffer established by this Bill, but that the buffer does not intervene unnecessarily in university affairs.
The whole purpose of the Bill is to establish a body which will keep the Department at arm's length from the university. To reintroduce the Department into the affairs of public bodies in a detailed way, requiring approval for virtually all matters relating to the personnel of the authority, is, I think, unnecessary and objectionable. It is important that protection should be given to officers and servants, and I regret the Minister's attitude in this matter.
Deputy Tunney's remarks were, of course, totally without foundation. The senior people may perhaps be able to look after themselves but those who are described rather oddly as servants will not be in a position to do so. I cannot understand why the Labour Party did not support me on that. I regret the Minister did not accept what I regard as reasonable amendments. I regret that the inclusion of the words “with the Minister's approval” in all these subsections shows a continuing desire by the Department of Education to maintain their control over a body which should be autonomous if they are to fulfil their functions properly.
Dr. O'Donovan: I sometimes forget to deal with a point I should have dealt with. I wish to deal with my colleague's reference to the use of the word “Quisling”. In my opinion if in any walk of life you play on one team on a pitch  you cannot play on the other side as well.
Dr. O'Donovan: I regret that I was not there. I said that I excluded from this description the three registrars of the three university colleges who are on the body. I was right in that. I appreciate that the Minister did not know actually whether they were put on. Perhaps the Minister and his Department took me up technically. I said they were on ex officio. I meant that they were selected because of the appointments they held. I was technically wrong. There is no use telling me that they were not put on because they were registrars. They certainly were. The chance of their being put on for any other reason was one in a hundred. The Minister did not know the last day.
Dr. O'Donovan: I promised that I would read out section 19 of the Institute for Advanced Studies Act, 1940. I will read it slowly so that comparison can be made between section 19 of that Act and section 15 of the Bill. It reads:
(1) It shall be the duty of the  Council, as soon as conveniently may be after the passing of this Act, to prepare and submit to the Minister a scheme for the granting of pensions, gratuities, or other allowances on retirement to such Senior Professors and permanent whole-time members of the Academic staff of the several Constituent Schools, and to such permanent whole-time officers of the Institute as the Council, with the approval of the Minister and the concurrence of the Minister for Finance, may determine.
(2) Any Scheme submitted to the Minister under this section shall, if approved of by the Minister with the concurrence of the Minister for Finance, be carried out by the Council in accordance with the terms thereof.
(4) The scheme submitted and approved of under this section shall fix the time and conditions of retirement for all persons to whom pensions, gratuities, or allowances on retirement are payable under the scheme, and different such times and conditions may be so fixed in respect of different classes of such persons.
(5) If any dispute shall arise as to the claim of any person to, or the amount of, any pension, gratuity or allowance payable in pursuance of a scheme under this section, such dispute shall be submitted to the Minister who shall refer it to the Minister for Finance, whose decision thereon shall be final.
(6) Every scheme submitted and approved of under this section shall be laid before each House of the Oireachtas as soon as may be after it is so approved of and if either House shall, within the next 21 days on which such House has sat after such scheme is laid before it, pass a resolution annulling such scheme, such scheme shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.
(2) Every such scheme shall fix the time and conditions of retirement for all persons to or in respect of whom pensions, gratuities or allowances on retirement are payable under the scheme, and different times and conditions may be fixed in respect of different classes of persons.
Would Deputy Tunney define for me what is meant in that section by a class of person? I know, and I suspect that Deputy Dr. FitzGerald knows. Deputy Tunney went to great lengths on this question in speaking about the difference between officers and servants and the attitude on this side of the House as compared with the generous attitude of the Fianna Fáil Party. In this Bill it says “with the concurrence of the Minister for Finance”. The scheme is to be referred to the Minister for Finance if there is any disagreement about it. The Bill says that his decision “shall be final”. On my copy I have marked in the word “why”? Why refer to the Minister for Finance whose decision shall be final, and why have different terms and conditions in respect of different classes of persons?
Mr. Faulkner: The Deputy appears to have made a wonderful discovery. If I had known that the Deputy was so interested, I would have brought in several Bills and I would have shown him the same phraseology in them.
Dr. O'Donovan: The Minister's colleague, the Minister for Transport and Power, when a similar Bill concerning the Electricity Supply Board was before the House in 1969, accepted two amendments from me which placed  manual workers in exactly the same position as clerical workers and technologists in the ESB. To the best of my knowledge that was probably the first time that was done in this country. The Minister will find that that is true. That is the last Pension Bill which passed through this House. Are the Fianna Fáil Party going backwards again?
Mr. Faulkner: There is nothing in this section of the Bill which does not appear in similar Acts in relation to superannuation provisions. I feel that, if there were power in this section to make only one scheme, it might not be possible to cater adequately for all types of employees. One could do a disservice to a group.
Dr. O'Donovan: What is it there for? What are we doing? Are we putting it in to fill out the Bill? It is there because it is a cog of something else which is completely out of date. It is antediluvian.
A person appointed under this  section to a committee or to advise may be either a member of An tÚdarás or not a member and An tÚdarás may, subject to the approval of the Minister given with the consent of the Minister for Finance, pay him fees and allowances for expenses.
Dr. O'Donovan: The Minister, so, will amend this on Report Stage because the meaning of this is what I have said. I take it from what the Minister has said that he is promising us to bring in an amendment on Report Stage.
Mr. Faulkner: The section empowers the Minister to pay over to An tÚdarás, in addition to the sums referred to in section 12, such other sums as are necessary to defray the expenses of An tÚdarás itself.
Dr. Thornley: And Deputy Dr. O'Donovan. I spoke about this on the Second Reading of the Bill so I do not think there is any point in delaying the House in going into this again. I want to make it quite clear that this amendment in no way reflects on the present chairman nor does it reflect on what is in my opinion the absolute necessity of the Minister to start somewhere. He was perfectly entitled to appoint the existing chairman in the way he did and to proceed from that basis to appoint the remaining members of the authority. I have no objection at all to the procedure that has been used up to this time. If this body is to assume statutory powers it is very little to ask that future chairmen should be appointed by the ordinary members by a process of election. It would be unfortunate to perpetuate the system by which the Minister chooses the chairman and then in consultation they choose the members of the body.  It was necessary as a once for all exercise at the outset of this but it is undesirable for the future and the bulk of academics feel the same way. I think for once they are right.
Dr. FitzGerald: I would like to agree with Deputy Thornley. The two amendments in my name, Nos. 34 and 35, are designed to achieve the same result. It is quite possible that Deputy Thornley's amendment is a neater way of doing it and I am quite happy to accept this in lieu of my own because the purpose is exactly the same in both cases. The Minister's concept of the chairman being appointed and then being consulted by the Minister before he selects the other members does not seem to us to be the appropriate way to deal with this particular problem.
There is a related amendment on the question of the appointment of members, that is amendment No. 37, which I shall not discuss now but I just draw attention to it as an integral part of a scheme of approach to this whole matter. The concept we would have would be that the Minister would appoint the members, that in the case of academic members he would, to ensure their representativeness, appoint them from a fairly wide-ranging panel suggested by the various academic institutions, giving him a wide range of choice, but that method would ensure that they were acceptable to, and broadly representative of, the academic viewpoint. Then the body so constituted would choose its own chairman. I accept, of course, that in the case of the great majority of State bodies, the method of appointment of chairman is that he is appointed by the Minister with the other members. The Minister will have no difficulty in citing precedents in other spheres. This body is somewhat different and in a case of a body of this kind it is important that it should have the power to select its own chairman. It is not a State enterprise run for commercial profit. It is a body concerned with academic functions and it seems to us that the chairman should ideally be chosen by the body itself when it is being constituted by the Minister along the lines suggested by  us in amendment No. 37 taken in conjunction with the rest of the Bill. I would therefore ask the Minister to consider this suggestion.
Mr. Faulkner: As the Deputy has said I would have no trouble in quoting innumerable instances. There are a considerable number of precedents of appointing a chairman in the manner proposed in this amendment but I will not base any argument on that. The most important thing is that we should appoint a person with knowledge, experience and standing appropriate to the position. It will not be an easy thing to get a chairman who is suitable for this particular position. If we were to have a situation where we would involve the members of An tÚdarás in the selection of chairman, it could very well prove to be a cause of dissension among the members. I am convinced that the Government should be free to appoint the best possible person available. As I said it will not be easy to get a person who will fit into this particular position. Therefore, I do not feel, particularly as I have mentioned that it could for one thing be a cause of dissension, that we should have the chairman elected by the members.
Dr. FitzGerald: The concept that the process of electing a chairman, or leader of a group, necessarily causes dissension is perhaps something one can understand coming from the Minister and his party. However, it is not universal in bodies of a nonpolitical character.
Dr. FitzGerald: I am prepared to  take a history lesson from anyone on that but I never heard that suggestion before. In a body of this kind there might be some difference of opinion in choosing a chairman and then there might be a vote. I cannot see a situation of war breaking out between members of the body over the choice of chairman. It seems to me that the Minister's approach is instinctively somewhat more authoritarian. The Minister appoints the chairman and he advises the Minister whom he should appoint as members. The suggestion we have made is more democratic, in which the academics and the institutions whose staff are to be represented have some voice in the choice of chairman. While leaving it to the Minister to make the final selection, they will guide him on who would be broadly acceptable to them and then they choose their chairman. This appears to be the democratic way and I cannot see why the Minister is so afraid of adopting this more democratic procedure.
The Minister should accept that, while many institutions have been run in this country along authoritarian lines, as time goes on and as we become more mature the pressures on our institutions are growing. In establishing an institution of this kind, which we hope will be able to continue broadly without change or amendment for many decades, the Minister should not take as his example the past procedures adopted in this country, perhaps under another Government 50 years ago. He should be prepared to take account of the way opinion is moving and the way people are seeking a greater voice in the decisions that affect them. From now onwards, all our legislation should be as democratic as we can make it, while safeguarding efficiency and the carrying out of business.
I find it difficult to believe that by giving members of the body—who have been selected by the Minister—the right to choose who would be the most effective chairman this is likely to cause dissension or create inefficiency. As between the Minister choosing who would be the best chairman and the body itself, having sounded out each  other in the choice of chairman, and then selecting the most suitable. I have no hesitation in believing that the latter is likely to lead to the best results and, in principle, it is the more democratic procedure.
Mr. Tunney: I am not convinced that the manner suggested by Deputies FitzGerald, O'Donovan and Thornley is the best way to get the ideal man. It is all right to talk about having a chairman elected in a democratic fashion. I can see that is possible doing it this way but, on the other hand, the manner of his election may prevent him from acting in what might be described as a democratic fashion. As Deputy FitzGerald has said, we will have members of different institutions on the board and unless there is a miraculous change we will find those members retaining certain feelings towards their own institutions. I would have fears for these people that might not be shared by other Deputies: that we might get what might be described as political lobbying entering into it: that we might get a chairman so elected whose objectivity might be influenced at a later date. If I am attributing to academics faults which they do not have, I shall be very happy to withdraw my remark but I do not think that is the position. I should prefer a situation whereby the ideal man would be selected and would not have to look over his shoulder to any group within An tÚdarás that had so honoured him. Rather he would be there to carry out the functions of the chair, without having any regard for the people on the board who had elected him. I think the situation in which the Minister would appoint the person best qualified is the one that would yield the best results.
Dr. FitzGerald: Deputy Tunney's classic statement in the case against democracy is interesting. However, it is not convincing as the people who would be doing the electing would consist only of a minority of academics. Therefore, there is no way in which some group working for the various institutions would control the election because there would be an equal, if not a greater, number of non-academic persions who, presumably, would not be manipulated in that way.
Dr. FitzGerald: Deputy Tunney has a point but it is one that undermines the entire democratic process. Nobody would be allowed to elect any person on that argument. When people come to choose a leader they may have divergent views and group themselves together in order to choose the man they consider best. If that is the argument Deputy Tunney is making, it is an argument against democracy and I do not think that is what the Deputy means. He would need to explain why, although democracy is good in itself, it is not to be used in this instance. He has not said why this body must be undemocratic. If he does not do so he is liable to the counter-argument that he does not believe in democracy. I am sure that is not the case.
Dr. O'Donovan: This is partly a theoretical argument because there is a chairman at present. Lest there be any doubt about it, I want to emphasise that the word “Quisling”— which I stand over—does not apply to the present chairman of the authority. That is obvious but in case there may be any doubt about it I want to emphasise the point.
Mr. Faulkner: In his opening statement Deputy FitzGerald referred to amendment No. 37. I will not deal with that except to say that so far as I am concerned the whole basis of the constitution of An tÚdarás is that it be established on a non-representative basis. It is in keeping with that concept that the Government should appoint a chairman on the basis of merit and suitability and that the other members likewise be appointed. It is true that in any organisation there can be members who are excellent as members but  they need not necessarily be so good in the role of chairman. This is a very important appointment and I consider it is one that should be made by the Government of the country. If I did not believe this was the best way to appoint a chairman I would not press it. As I said before, it will be very difficult to get a person of the calibre necessary for this position——
Dr. Thornley: The Minister's reference to the present chairman is a bit unfair. We have all made it quite clear here that we have no objection to the manner in which the present chairman was appointed. It was a hen and egg situation. The Minister started the right way about it. Deputy Tunney's and, indeed, the Minister's suggestion that the process of the chairman being chosen by the members of the authority is more likely to be subject in the future to political pressures than the process of his being chosen by the Minister, who is himself, of necessity, a politician is, I think, absurd.
Dr. O'Donovan: Suppose that instead of the words “full-time” the phrase “shall devote the whole of his time to the duties of his office” were used would that be out of order? I am in a difficulty here. I felt that “full-time” was peculiar.
In paragraph 3 (3), page 5, line 48, to add “provided that he shall hold office for an initial term of not more than seven years, and that his appointment may be renewed for a further term of not more than seven years”.
This amendment is designed to limit the term of office of the chairman to seven years renewable for a further seven years. The present wording is such that the chairman could be appointed for life. That does not seem  to us to be a desirable method of proceeding in the case of this appointment or, indeed, most appointments of this kind. We feel that a period of seven years, renewable for a further period of seven years, is reasonably generous. That is probably as long as is given in any other case. I do not know any reason why this appointment should be made for life. It seems a bad principle.
As a general principle we ought to move away from life appointments for posts of this kind. It is desirable that we should have a turnover of people in such jobs, that people should not go stale on the job and that a fresh mind should be brought to bear on it from time to time. This principle is well established in political life. There is a lot to be said for establishing it in this sphere also. It could be extended very widely. Unfortunately, the only bodies in this country which have this process of renewal of their leadership at intervals with people returning to the ranks are certain religious orders. I hope the time will come when this good practice, which does not extend to the parish clergy, will be extended more widely both within the Church and within the State.
Dr. Thornley: I should like to support this amendment. We are in the difficulty that the present chairman was so well suited to the job and, if I may put it crudely, came on the market at the appropriate time. It would be very unfortunate if the chairmanship of the Higher Education Authority should become a sort of career post. I do not imagine for a moment that the Minister envisages something of this kind, but there should be statutory provision to prevent this happening. Here for once I think the academics are in advance of the Minister's thinking. The presidencies of the constituent colleges of the National University of Ireland all, so far as I know, carry some element of time limit, do they not? They do not. Well, usually the accident of age produces this in any case.
Trinity College will probably move towards a situation where the head of the college will be appointed for a specific number of years with the  opportunity of renewal. This is something towards which most educational institutions are moving. It would be very unfortunate if a future HEA were saddled for say 20 years with the same chairman. We have got to accept that we grow old and, as Deputy FitzGerald said, stale. One appointment of seven years might not allow a man the full time to settle down to the intricacies of the job. I would not want to curtail it that much. A total of 14 years, to put it slightly harshly, just gives you time for the man to get attuned to the job, do his best for a certain length of time, and become, perhaps, a little work weary at the time when he disappears.
Mr. Faulkner: I am afraid I must oppose this amendment for very much the same reason as the one I put forward in relation to the other amendments. I believe that there should be the maximum flexibility in regard to this position. I have already pointed out that it is a position which it will be difficult to fill. When the chairman is appointed by the Government, under this Bill they can lay down the terms of the appointment. To tie the Government to a particular number of years could quite possibly mean that a person of exceptional calibre might not be willing to accept the position. We can take it that, in the normal course of events, a person who would be likely to be appointed—and requiring to have considerable experience and knowledge—would be in his 50s at least. In accordance with the regulations laid down in the Bill he would have to retire at 70 years. To ensure that the widest possible choice will be available to the Government I feel we should not tie their hands in this way. As I said, the Government can lay down the terms of the appointment.
Dr. FitzGerald: While appreciating the need for the widest possible choice,  I do not think we should widen it to the point where we would take a man who would only take the position it he got it for life, which I think the Minister implied. In the case of a man of 56 years or less, the only way in which our amendment would preclude his appointment is if he said he would not take it unless he got it for life. Otherwise, 14 years would be sufficient. I do not think the type of man who thinks like that is the type of man we want. That is precisely why there is a good case for the amendment. I found the Minister particularly unconvincing on this. Sometimes I find his arguments at least partly persuasive but on this issue I do not think he made a case at all. This is a very reasonable limitation. I should like him to think again about this amendment. By the way, I trust that the presence of Deputy Lalor in the back benches has no significance.
Mr. Faulkner: I do not know exactly what the Deputy meant by “for life” because, as I said, it would be unusual to find a man of the necessary experience who would not be in his fifties, and if he must retire at 70, then the total period in which he would be in office is very little more than the two seven-year periods, 14 years, set out by the Deputy. Therefore, while in practice this is the way it may work out, I do not feel I should tie the Government.
Dr. Thornley: Yes, I am a young man myself. Could the Minister not conceive of a situation in which he might, on the one hand, want to appoint a very able man of 40, 42 or 45 but not wish to leave him there for 25 years? In effect what the Minister is saying is: “I and my successors will always choose men over 56; therefore your amendment is unnecessary.” That is rather unfortunate.
Dr. FitzGerald: It is very revealing that the Minister should think of a job like this only going to a man in his fifties. If this is the kind of job I think it is, you might very well get a highly qualified person of a younger age, a man in his forties or even in his thirties.
Dr. FitzGerald: I do accept that the Bill does not say a man cannot be appointed until he is in his fifties. I am just saying that the Minister's repeated suggestion that this job would in general go to a man in his fifties is rather revealing as, indeed, has been the approach he has adopted on a number of points. It seems to me that each of these revelations as it comes  and the approach the Minister is adopting are not helping me to form a picture of a dynamic, autonomous body doing the kind of job that needs to be done, and it worries me a little. In so far as appointing a younger man is concerned, as might well be desirable, he might happen to be the best man. I am not saying he must be a young man. It could be that the best man appointed the next time would be, as in the case of Dr. Rafferty, a man who is later in life and who is appointed primarily because of his experience. However, if a younger man is appointed, which might be desirable despite the Minister's views as to the suitability of such a person, then it is important that the job should be seen to be one for a period of years and not for life. I believe this amendment would clarify that.
Mr. Faulkner: I do not know what the Deputy means by “revealing” when he refers to my point in relation to the possible age that the chairman of this body would be when appointed. It does remind me of a comment of the President of this country when he was returned to power as Taoiseach and when some of the Opposition commented adversely on the age of his Cabinet; he said they were not training for the 100 yards.
Mr. Faulkner: The point I have been making is that the chairman would need to be a person of fairly considerable experience. This does not preclude younger people being appointed and the fact that we do not specify certain ages in the legislation leaves the Government free in the matter of the terms of appointment. This is also included in the Bill. Therefore I still feel this matter should be left as flexible as possible so as to give the Government the opportunity of having as wide a range of selection as it is possible to have.
() The academic members of An tÚdarás shall be appointed by the Government on the recommendation of the Minister, from a list of not more than three nominees to be submitted by the governing authority of each university, or, where a university has more than one college, each college of a university, of the Royal College of Surgeons in Ireland, and of any other institution of higher education which may have been so designated under the procedure set out in section 1 (1) (c) and in the case of the first appointments, of such other institutions of higher education as the Minister may designate for this purpose.
The student members of An tÚdarás shall be appointed by the Government on the recommendation of the Minister from a list of not more than one nominee from the Students' Representative Council of each institution from which nominations of academic members are received under the procedure set out above, and not more than two nominees from any national students organisation
I referred to the first paragraph a few minutes ago but I want to develop my thinking on this now. The method of appointment which the Minister visualises for the authority is one under which he makes the appointment having consulted the chairman but not, of course, being bound by his views. The Minister has, in a number of interventions, stated cogently his case for the more authoritarian approach. He has even gone so far as to say that the whole idea of this body is that it should be non-representative. I think  I heard him right, that he said “non-representative” rather than “unrepresentative” and I hope there was a distinction between the two words. I do not see any particular virtue in making it non-representative, or as I would feel, unrepresentative, for its own sake. We do not want people appointed who are going to be delegates for their institution. We want people appointed some of whom will be academic members in academic institutions bringing their experience to bear but not regarding themselves as being there to negotiate for their institution. Therefore, we do not want people to be, in that sense, representative of their institutions. On the other hand, there is a danger, of which we have some little evidence in the appointments made already, of the particular way in which they are made, that the Minister would select academic members of this body because they agree with his view on something rather than because they respect the views of or are in a broader sense representative of academic thought. The Minister cannot say in this case that there is no such danger, because his predecessor did precisely this. He selected the members of the present authority as people who, on the information available to him, supported his view on a single issue, one of a number with which the authority was going to deal. This seemed to me a bad practice and was a mistake at the time.
Dr. FitzGerald: Yes, I understand that. These are people who, in one way or another, were identified with the Minister's view on the merger and, it has to be said, were identified with a minority view on this issue which Deputy Thornley and I shared. The mere fact that Deputy Thornley and I shared this view does not mean that to chose only those people who agree  with us, as happened in the case of the former Minister, is a good way to select an authority of this kind. There we have a concrete example, in relation to the non-statutory predecessor of the body we are here contemplating, of a Minister deliberately choosing people to be unrepresentative of the academic institution and their members because they agreed with his viewpoint. This seems to me to be a mistake and a singularly stupid thing to do, elevating one particular issue as if it were the only issue at stake. It was a mistaken thing to do, and as we know that Ministers are capable of doing it there ought to be some safeguard against it. However, the safeguard must be such that the people concerned are not elected or selected by their institution directly to be on this body because they would then regard themselves very much to be representatives of it, and could act as if they were negotiating on behalf of these institutions. I have sought, therefore, to devise some constitutional formula that would lie between these two extremes which, on the one hand, would ensure that the final choice would be the Minister's, which I think is the right approach to choosing a body of this kind but, on the other hand, would give us an assurance that the Minister made his choice from among people who, broadly, had the confidence of the academic institutions that they represented.
I would hope that academic institutions would show sufficient regard for opinion to select for their panel people who represent different views within the institutions. Probably that would be the case although I could not offer an absolute guarantee on that but normally it would be the case. At any rate, whether they would represent the spectrum of opinion or the predominant opinion within the institution, we would at least be safeguarded from the unhappy position of having people chosen who represented specifically the minority view only within the institution on some issue or issues. To eliminate the majority view, however one might disagree with it, would seem to me to be a very unsatisfactory way of proceeding if one wants harmony.  The only consequence of this would be to undermine confidence in the body. Confidence in this body was undermined and it has taken several years for them to re-establish confidence in the minds of the academic community. I am sorry to say that I know members of it who still have not much confidence in this body.
Dr. FitzGerald: I know more than one. There is no suggestion of a minority of one. The body, by declaring its independence on the first day after a long and difficult meeting with the Minister when they insisted on issuing a statement to establish that what he had said about them was not true, did re-establish in that way some confidence in themselves and have since shown a reasonable independence of view in the carrying out of their duties. At least, they have not shown any particular subservience to Ministerial views and on the issue of whether it will cost £15 million or £24 million to build in our universities within the next few years, they have shown considerable independence of view and have been in conflict with the Minister. I do not suggest that they should have a conflict merely to show their independence but nonetheless they have re-established some confidence in themselves. However, it is unfortunate to have set up a situation in which the academic representatives are so unrepresentative of the prevailing view in their colleges that they do not start with the confidence of their colleagues and can still be referred to, quite wrongly if I might say so, with respect to Deputy O'Donovan, as “Quislings” even at this stage.
Dr. FitzGerald: Of course, but my point is that while recognising that Deputy O'Donovan is entitled to his opinion. I would prefer to have a situation in which he did not consider it necessary to express or to hold this view. It does not help that Deputy O'Donovan should consider it necessary to refer to them in this way. While  I do not agree with the view I can understand that the method of appointment has created a situation whereby people with strong views, such as Deputy O'Donovan, consider it appropriate to use this expression. I would prefer not to have this kind of cloud cast over a body that was carrying out an important function.
It seems to me that the solution lies in some loose arrangement of the kind I propose. Of course, I am not wedded to the particular details of the solution. I put it forward for discussion as a method by which the institutions in question would select a number of people—I suggest three for each one which, if we take the four university colleges plus, I suppose, the Royal College at Maynooth, the Institution in Limerick and the Royal College of Surgeons, seven in all, would give 21 people from whom to choose.
Dr. FitzGerald: I do not suggest for a moment that the Minister would have to choose one from each institution because that would be the wrong approach but he could choose one-third and reject two-thirds. That would leave him reasonable latitude and he would know as we would know and as the country would know that when he had made the appointments, the people concerned would command the support of the bulk of our colleagues and would be broadly representative of the academic institutions. If the Minister is willing to consider some such solution or some safeguard of this kind, I would be more than happy to withdraw my amendment and let him introduce one in different terms but which would achieve the same effect. I hope the Minister will consider himself able to accept some such arrangement whereby the damage done because of the mistake made by his predecessor—a mistake that was made in good faith and in a difficult situation when he was worried about getting his merger through—cannot be repeated and the people will know that any future institution will have academic members who are representative of academics as a whole.
Dr. Thornley: I think Deputy FitzGerald is making a very sincere attempt to achieve the impossible. He accepts, as much as I accept, that the authority, of its nature, should be literally representative in the sense of containing delegates from the different institutions over which it would exercise its authority. On the other hand, the Deputy is trying to introduce a device whereby some modicum of representation would enter into it. I am afraid I do not believe that this is possible in the first instance.
This is a case where one must accept that the academic constituency is not necessarily the appropriate one to choose people for this body. If the academic constituency has a representative function, I think that function belongs more properly to the rejected conference of Irish universities, whether that ever comes into existence I do not know and I am not particularly enthusiastic about it. I gather from a remark of the Minister's that he is not particularly committed to it either. There are times when the representative principle simply breaks down. Deputy FitzGerald will know that the production of even three names from an individual institution will lead to considerable political in-fighting. I apologise to Deputy Tunney for misunderstanding a remark he made some ten minutes ago when I thought he was referring to constitutional politics but then realised he was referring to academic politics. Here, I agree with him. It is all of the process that Deputy FitzGerald is suggesting. The first place that comes to my mind of where it is utilised is, in so far as I know, in the appointment of bishops.
Dr. Thornley: I think it is used also in the case of the appointment of the Provost of TCD where, my colleague, Dr. O'Donovan, will be glad to hear, for once, we exercise a degree of flexibility greater than that to be found in his own institution.
Dr. Thornley: Deputy O'Donovan has just said they can usually ensure that their own man gets in but if Deputy FitzGerald's amendment is adopted, surely the universities can do precisely the same? With no disrespect to the people who run universities today, I can say that they are politicians of the highest calibre and I have seen more blood let in universities than I have seen during my time in Dáil Éireann.
Dr. Thornley: Of course they can whisper in the Minister's ear that the other two are only make-weights and that X is the one they really want. This is reintroducing the representative principle. I dislike these references to the Minister choosing people who are representative of the minority point of view. A minority point of view is very often right, as Deputy FitzGerald admitted, but if I could take Deputy FitzGerald's mind back to a meeting of the Irish Federation of University Teachers which took place in Cork about three years ago for the purpose of discussing the merger issue, the Deputy was one of those who, with myself, was adamant against putting it to a vote of the members of the Federation. He used the classic statement which he may not remember——
Dr. Thornley: He said this was an occasion on which we consult the interests of our constituents rather than their wishes. I think that is worthy of Socrates. It certainly applies in this case. If the representative element creeps into this body it will become a plaything of the different institutions of higher learning and the Minister will not be able to pick the best people. I do not like to hear Deputy FitzGerald using expressions such as “the mistake made in appointing people who agreed with the Minister” and “the damage then done”. He then says that these people have re-established the confidence——
Dr. Thornley: ——of a large part of the academic body in their independence. If a body of men chosen in precisely the manner to which he objects nevertheless had the integrity to establish their own competence this argument to some extent falls to the ground. We are in danger of erecting a very cumbersome body and one not appropriate to the tasks it has to perform particularly if, as I envisage will be the case, a considerable number of additional institutions, particularly of a technological kind, will be added to this institution. While I respect Deputy FitzGerald's motives in trying to square the circle and respect what he is trying to do, I cannot support him in this instance.
Mr. Tunney: I am in complete agreement with Deputy Thornley on this. I rise purely to give Deputy FitzGerald an opportunity of correcting what is already on record in so far as his anticipation of this general representation is concerned. I know that he did it without any great study and he spoke about UCD, Trinity, Maynooth and, he said, possibly Limerick. These were the institutions which he nominated as possibly having representation.
Dr. O'Donovan: There is provision in the Book of Estimates for the higher technological college in Limerick but there is no such provision for Kevin Street or Bolton Street. This is a very good reason for Deputy FitzGerald taking that attitude. I have an open mind about this, do not misunderstand me. I see no reason for differentiating between Limerick and Bolton Street but there is a reason for it.
Dr. FitzGerald: I referred to the  institutions which the Minister said would be covered and of course I agree that other institutions, including the ones mentioned, ought to be covered but I was confining myself to the ones we know would be covered.
An ordinary member of An tÚdarás shall be appointed by the Government on the recommendation of the Minister and, before making a recommendation, the Minister shall consult thereon with the chairman of An tÚdarás.
It may be to give the chairman a veto or it may be to prevent two people who cannot tolerate each other from being put into one room. Mind you, if you did put two such people into the one room it is extraordinary how quickly they would form a battalion against everybody else. However, I should like the Minister to explain why that phrase was put in. At the end of the amendment it says “or such other institutions as the Minister may designate”. How is he going to designate them?
Dr. O'Donovan: This is not a bad idea. It does give the Minister power to do it—“the Government on the recommendation of the Minister”— but it also gives the universities and the other higher education institutions a right which they really should have.
Deputy FitzGerald spoke about the statement that was issued. The Deputy's memory is excellent but so is mine because I well remember what I said to myself when I saw that statement. I said that that statement proves the exact opposite of what they said;  it proves that they are not independent. Anybody who is independent does not have to tell anybody else that he is independent. I came to the very exact opposite conclusion to Deputy FitzGerald's. Now, I know nothing about the operations of this body, I am glad to say, but this is a proof that they have been moving along in a nice Mickey Mouse way, quietly and so on, but of course they are not in existence legally, therefore it is up to them to behave in a Mickey Mouse fashion. When they get this document behind them, with the imprimatur of the Oireachtas behind it, they might behave in a completely different fashion.
Mr. Faulkner: I had some sympathy with some of the amendments which I did not find possible to accept, but I am afraid I cannot have any sympathy with this amendment. The whole virtue of my approach in the Bill in this matter as I see it is the fact that members will not be representative. It would be illogical to expect a body constituted on a representative basis to be able to make recommendations on an objective and impartial basis, free from local pressures and interests. I agree with Deputy Thornley that Deputy FitzGerald is sincerely trying to achieve the impossible.
An important function of An tÚdarás would be to make recommendations for consideration by the Minister and by the Government on broad questions concerning State policy towards higher education. If An tÚdarás were a representative body these questions could very well become the subject of public controversy before An tÚdarás could make any recommendations to the Minister. In many instances the members would feel it incumbent on them, if they were representative of a particular institution, to report back to find out the views of that particular institution and in those circumstances, if it became a  matter of public controversy, we would reach the stage where public attitudes to the matters at issue could be formed to a great extent before the recommendation reached the Minister at all and then the recommendation would be of very little value.
For that reason rather than appoint a representative body—and I think no matter what approach you make to it on the lines mentioned by Deputy FitzGerald, that the body would be elective in some form—members should be selected and appointed having regard to their knowledge and experience and the contribution they are likely to be in a position to make in the conduct of the authority's business. For those reasons I fear I could not accept the amendment. I am glad to know that the Deputy accepted that An tÚdarás, the present ad hoc body, is an autonomous body. I do not know why it would be necessary for me to disagree with them to prove they were an autonomous body but I remember that Deputy FitzGerald also disagreed with them in regard to something which we discussed here one night previously——
Dr. FitzGerald: I accept the undesirability of the body being representative and if the amendment led to a situation where the people concerned felt themselves to be, appeared to be or acted as representatives, that would defeat the purpose of this exercise. I accept that but I do not believe that would be the effect or consequence of the amendment. The fact that the Minister would be doing the appointing from panels of people would, I think, make it clear that they were not representatives and should not and would not act as such. In view of past history in this case something of this kind seems to me to be necessary to avoid a repetition or fear of a repetition of the kind of situation that arose at that time.
I am grateful to Deputy Thornley for his tribute to my Socratic wisdom  as, I think, he described it on an earlier occasion. With my customary insouciance I had forgotten that I had said anything of the kind. It is one thing to feel as I felt then and would feel about the people on this body, that they should act in the interests of their constituents rather than in accordance with their wishes on any particular issue but that does not mean that you would get an ideal result by appointing people who are known to be at variance on a major issue or issues with the people there, the people from whom they are drawn and I do not see any particular merit in that. They are two quite different issues. I share both the Minister's and Deputy Thornley's concern that the people on this body, although representative of academic opinion in their colleges in a broad sense, should not act as such, and should do as we as Deputies should do, adhere to Burke's dictum, that we should make up our own minds rather than act as delegates bound by our constituents' wishes on particular issues.
Dr. Thornley: It seems to me from my knowledge of the background of the Higher Education Authority that the original intention appeared to be that the HEA would be a body nominated by the Minister and that the Conference would be a representative body from the universities. I think many academics went along with the nominated status of the HEA on the basis that the other body, the Conference, would come into existence on a rather representative basis. This is not a view which I personally hold strongly but there are many academics who do. At this stage when the Minister is insisting, correctly in my view, that the authority should be appointed by him, would it be fair to ask him to clarify his thinking on the appointment or institution of the Conference or is that wholly out of order?
Mr. Faulkner: I do not think I should go into it. I pointed out why we dropped it in this particular Bill. It was originally suggested that it should be brought in with the Bill but for obvious reasons we did not proceed with that. I should not like to comment on it any further now.
Mr. Faulkner: I meant no discourtesy to the Deputy. I simply forgot that he had asked the question. I imagine one of the reasons the chairman should be consulted is that from his experience he could be very helpful in assisting in the selection of the best possible people for An tÚdarás. The Deputy himself gave one possible reason why the chairman should be consulted and, perhaps, with considerable validity.
Dr. O'Donovan: I take it the procedure would be that the Minister would prepare the list of whatever people are concerned and put it to the Government. The Government would be appointing the chairman—sorry, it is in the subsection: “An ordinary member of An tÚdarás shall be  appointed by the Government.” This is at the top of page 6. I take it the procedure would be that whatever people the Minister wanted put on the authority would be put on a prepared list, he having consulted the chairman. The chairman would first be appointed, then a little time would elapse while he was being consulted and then the Minister would put up another memorandum to the Government containing the list of names?
I am not particularly concerned whether the wording proposed by Deputy FitzGerald or the wording proposed by Deputy Desmond and myself takes precedence. Both tend towards the same point. Here I many seem to be inconsistent in that I opposed the suggestion of Deputy FitzGerald in an earlier amendment that someone could only be dismissed for cause stated but I do not think I am inconsistent because the phrase “for cause stated” was so loose that it implied the publication of any alleged dereliction of duty of a member of the authority. What I fear here and for once I am on Deputy FitzGerald's side——
Dr. Thornley: Unlike some other Deputies, I am content with the situation where the Minister nominates the members of the authority but I think a situation where the Minister may remove just like that any member of An tÚdarás is going a little bit far. I have no reason to suspect the present Minister would exercise this power in an improper fashion but the fact does remain that there are those who might feel that a public speech by a member of the authority which differed markedly from departmental thinking would warrant his removal.
I do not want to raise again a rather sore point but we must remember that the Leader of the Government party in the Seanad questioned the right of a particular lecturer in UCD to retain the post he then held on the grounds of a political opinion he had expressed on a television programme. The fact that that kind of thinking can exist at all in the Minister's party —and I am not denying that in different circumstances the same kind of thinking might be found on this side of the House—demonstrates quite clearly that where the Minister—I know the word “Government” is used but “Minister” and “Government” are tantamount to the same thing—where the Government may at a moment's notice remove an ordinary member of An tÚdarás from office, it does invade their autonomy.
A member of An tÚdarás might be fully conversant with and in agreement with Government policy on things like education but he might be a member of the National Trust or the Georgian Society and make a speech viciously condemnatory of Government policy in respect of something which would come under the auspices of either body. Would this mean that his tenure of office as an experienced man picked to perform an educational role could be placed in jeopardy under this or any future Government?
My amendment does not differ substantially from Deputy FitzGerald's amendment. It does not demand that the Minister publish the reason for the dismissal of such a member. All it asks is that he and the chairman should consult with each other and  decide that good cause exists for the dismissal of such a person. Since the Minister will in the first instance have appointed the chairman before he appoints the authority it does not seem to me to be placing a very great inhibition on his freedom of action here. I do not think anyone could suggest that the safeguard we are suggesting here is an arrogant or academic one. Political circumstances during the last 50 years have established precedent for the interference by parties on all sides into appointments and dismissals which are unfortunate. I do not think a rate collector would be appointed on the arbitrary lines suggested here or dismissed on those lines even though the application of appointment boards to local government posts is surely more democratic than what is stated here. Paragraph 6 (1) states:
Dr. FitzGerald: I had been looking forward to hearing Deputy Thornley on this amendment. I knew I would have occasion to admire his ingenuity in attempting to reconcile two positions which are not reconcilable. His suggestion that the phrase “for cause stated” means that one must put an advertisement in the papers about them is without foundation. I understand that is a phrase which has a hallowed legal significance, that the person must be told the reason why he is being dismissed. It is a simple precaution against wrongful dismissal because it means that if the cause is in fact incorrect and the person believes he can show in the court that it is incorrect he can take an action for wrongful dismissal and if no cause has to be stated he is put at a severe disadvantage in that respect. I am sorry that Deputy Thornley is unaware of this.
Dr. FitzGerald: I think I can relate my remarks to the present one. Having established that that particular point made by Deputy Thornley is without foundation we leave him a little exposed to criticism in that he would not support the suggestion that servants of the authority, as they are called, should have the reason given to them, but in the case of members of the authority not only must a reason be given but it must be a good reason.
Dr. FitzGerald: It is true the wording does not require that, but I think, although I am open to correction on this, that the meaning of “for good cause” also from a legal point of view is that the person concerned would have a right to know what the cause was. Otherwise, it would be a completely meaningless phrase and I do not think that is the case. At least the onus of proof would be shifted to the authority and I think they would and could be required by an action taken in the courts to state the cause. I shall not go into the nature of that action because I am not legally qualified to do so but in both cases they would either have to tell the person at the time or could be required by him to give the reason. I believe this principle should apply to all employment. I do not believe it should be confined to members of the authority. I think Deputy Thornley probably agrees with me but has got himself into a tangle on this issue.
I want to ask the Minister whether the wording of my amendment is necessary? He will see that in addition to requiring that the dismissal should be “for good cause” the amendment goes on to suggest that the vacancies should be filled in accordance with paragraph 4 of the Schedule.
Dr. FitzGerald: If it is legally covered by section 4 I will not press that. I will simply join with Deputy Thornley in pressing the “good cause” part. The simplest thing to do at this stage is not to press my own amendment but to support Deputy Thornley's amendment. I wish that he had supported mine earlier on.
Mr. Faulkner: If I might deal with the “for good cause” first, I have no doubt this was inserted to give some protection but, in fact, it does not provide any protection against wrongful dismissal. Deputy Thornley cited the case in which a member might make speeches which the Minister or the Government might not like and, because of that, they would remove him. But I cannot see how putting in “for good cause” would provide any protection. I could not accept this but I will tell you what I will do: I will split the difference. I will accept part of the amendment:
Dr. O'Donovan: I had an example of this a few years ago when I was  an official in the Department of Finance. The Department of Agriculture wrote to consult us about something or other. It was about a company matter actually, a matter in which we had a great deal of experience and in which the Department of Agriculture had no experience; but they dug their heels in and eventually we wrote back and said: “You have consulted us. You can have your own way.” It would really need to be with the approval of the chairman to be worth anything.
Dr. FitzGerald: My understanding is that the person is then in a position to ask the cause and, if it is not given, he can take a mandamus action requiring the authority or the Minister to state the cause and, it having been stated, he can then take it to the court for the court to decide if his appearance, for instance, on a television programme was a good cause or not and I have a fair amount of confidence in our courts in matters of that kind and, therefore, it seems to me it does give protection and I should like the Minister to explain to me why it does not. Am I badly advised legally?
Dr. FitzGerald: But, of course, if you get a situation in which a man who is dismissed appears to challenge his employers that, too, gives rise to acrimony. As long as he is dismissed and there is no redress—is that the Minister's suggestion?
Dr. FitzGerald: He cannot require from them a statement of the reasons for his dismissal and, in those circumstances, his action would be much more difficult to sustain whereas, if the Minister is forced to state a reason— however inadequate, dishonest or disreputable—then his position is slightly strengthened. Where am I wrong in that?
Dr. FitzGerald: Then he either answers, which is good, or he does not and, if he refuses, the man can go to the court and seek an order requiring the Minister to state the cause because it is required that there shall be good cause; and that mandamus order, in my experience of how the courts proceed in matters of this kind, would be  given. Right? Frankly, I think the Minister is on too weak ground legally. He may not want to accept the amendment but it is not because the amendment would not do what it sets out to do but because it would.
Mr. Faulkner: I do not agree with the Deputy. Suppose this were inserted and, as has already been mentioned, a question were asked here as to what the good cause was, it is quite possible that, because it is inserted, the Minister might have publicly to state what the cause was——
Dr. FitzGerald: We have the right to ask whether it was for good cause or not and the Minister has the right to say that he does not feel it is proper or desirable for him to give the information. I can fume about it but I cannot do anything about it. The words “for good cause” do not change that. The Minister can say there is good cause but he does not feel it is in the interests of the person to tell me. The powers of this House do not extend to getting mandamus orders against a Minister to compel him to give information.
The purpose of this amendment is to delete the provision whereby Members of the Oireachtas cannot be members of this body. I put down this amendment in pursuance of a general view I hold that the exclusion of Members of the Oireachtas from other walks of life is something that is carried altogether too far and there is no reason why Members of the Oireachtas should not serve on bodies of this kind. The life of this Oireachtas would be enriched if the experience of its Members were not narrowed down as it has been by totally inappropriate legislation of this kind. We have gradually narrowed down the activities of legislators by excluding them from all kinds of activities.
This goes back to the British practice of excluding Members of Parliament from holding offices of profit under the Crown, an antiquated concept concerned with the existence of corrupt practices in the 18th century as, I think, Deputy Thornley will agree. I hope he will give us the benefit of  his professional knowledge on the subject, not of corruption, of course, but of the history of the 18th century.
Dr. FitzGerald: This curious practice originated in that century. There was a case in Northern Ireland too. But that is no reason for continuing here now and I am opposed in principle to this kind of attempt to keep Members of the Oireachtas out of involvements in vocational activities in which they may have useful roles to play. It is not simply in this particular matter. I have come across this again and again in legislation. While there are some posts it would be inappropriate for Members of the Oireachtas to hold, they do not include posts on bodies of this kind. It is important we should call a halt to this whole process, which is not helping the work of this House. In other countries Members of Parliament can have wider experiences of this kind and this, I think, is a good thing. I would therefore press that this section be deleted as being the continuance of a policy which is, I think, misguided.
Mr. Faulkner: I cannot accept this amendment. I have already spoken on this at some length in my reply to the Second Stage of the Bill. The fact that a candidate for a Seanad election was a member of An tÚdarás could help to influence his election. This is something which would be unfair to other candidates. It is all very well to talk in theory here in relation to this matter but in practice I have no doubt that candidates, say, from the universities for the Seanad election might feel that people who are members of An tÚdarás might have an advantage over them because of their membership. I do not see any particular reason why the paragraph should be deleted. Of course as Deputies are also aware this is established practise.
Dr. Thornley: As I understand it, these two amendments are being taken  together. I should like to address a few remarks in relation to my own. I cannot go the whole way in support of Deputy FitzGerald. To hold at one and the same time membership of a body like An tÚdarás and Dáil Éireann would probably be undesirable. I think the disadvantages outweigh the advantages. However, the point the Minister made is surely met in the Labour Party amendment. The Minister may well say that membership of a body like this might assist somebody as a candidate in a Seanad or Dáil election but surely if it were made clear that in the event of their being successful in this election they would cease to be members of the authorities this point would be covered. In my own case in 1965 I stood, with somewhat ignominious results, for the Seanad in the constituency of Trinity College, Dublin. At that time I was a member of the Medical and Social Research Board. Nobody suggested to me that I would have to resign from that board before standing for the Seanad. I have not much doubt that if I had been elected to the Seanad which, of course, I was not, with the inestimably more valuable result that I am now here, I would probably then have been asked to give up my membership of the Medical and Social Research Board. I think this is fair.
I do not understand the distinction there. I suppose the distinction between “nominated for election to either House of the Oireachtas” and: “as a member of Seanad Éireann” means nominated by the Taoiseach. Is that right?
Dr. Thornley: This is terribly restrictive. The Minister will correct me if I am wrong but the rules adopted by, for example, Radio Telefís Éireann in this respect seem to me to be reasonably  fair if a person goes on suspension, in effect, from the point of commitment to a political party, though that only covers one aspect of the thing. Unless I am wrong a member of the Minister's own party was a member of the RTE Authority and his employment as such was not terminated until the point of his election to the Seanad. Of course, it could be that he was nominated and that is covered by the Minister's remarks. This is excessively restrictive. I can appreciate from my own bitter experience that once one declares affiliation to a political party one is naturally more suspect in an allegedly objective channel of communication like RTE or the Higher Education Authority than one was before and I can see the point that on election to the Dáil one should cease to be a member of the authority. I would even be prepared to accept an amendment to my amendment which differed to the extent that:
As it is, this would debar a university academic from standing for his own university constituency and this would be a very unfortunate thing. If the Minister argues that his so standing as a member of the authority would enhance his chances of getting elected all I can say is, so what?
Dr. Thornley: It is a tribute to the intelligence of his constituents that they feel that his experience on this body is relevant. On the other hand, once he is elected—I am not sure whether this is true in the case of university Senators— to the position where he has to take objective, stated, public, political stances it might be impossible for him to retain membership of a non-partisan board like this one.
 Specifically, I am worried about nomination to the Dáil but I am not nearly as worried about that as I am about nomination for election to the Seanad. It could be here that the Minister would be depriving the Seanad constituencies of the two universities of precisely the kind of highly qualified person who upon election would bring to Seanad Éireann the sort of qualification which would make him a good Senator. I would accept that at the point of election he might be compelled to give up his membership of the authority but as put at the moment the restriction is excessively tight. I agree completely with Deputy FitzGerald that in the past we have been too restrictive and tended not to attract enough people experienced in this sort of field into the Dáil. I know that when we do this we are open to the cheap jibe about intellectuals, Trinity queers, Maoists and all the rest of it.
I would make the point that in so far as this has been a constructive debate, and I think it has been on the whole, the contributions that have been successively made have been made in four cases by professional teachers or former professional teachers. To close the door upon this kind of person in this way is very unfortunate. It is separating the Dáil and more importantly the Seanad from a whole stream of experienced people in educational life.
If the Minister cannot accept the amendment which provides that people can be nominated for election to the Dáil and remain until their point of election as members of An tÚdarás, could he not accept an amendment that they be nominated for election to the Seanad and still retain their membership of An tÚdarás until the point of election? That compromise would not wholly satisfy me but at least it would be some step in the right direction.
Dr. FitzGerald: There is a basic misconception here. We have, for example, the Seanad which is meant to be vocational so what do we do? As soon as we get a man who, because he is in his own vocation representative and able to make a contribution, is  thought worthy of appointment to this body, we preclude his being a member of the Seanad. What is the point of having a vocational Seanad if you set about then, as we have done repeatedly in legislation, excluding anybody who has vocational experience in a particular sphere, having gained a particular kind of vocational experience, from being members of it?
I understand though do not accept the argument in respect of the Dáil; I cannot even understand the argument in respect of the Seanad. It makes nonsense of the whole concept of the Seanad. It seems to me that we are ensuring that Parliament is increasingly unrepresentative of the life of this country by the continuance of these kind of provisions in various Acts. It is difficult enough to get a representative Parliament because of the fact that so many people are precluded from being members by nature of their occupation because in practice the vocational groups from which Parliament draws are very narrow. There are virtually no employees in the Dáil except trade union officials. There are one or two others—I think one local authority officially and a couple of others.
Dr. FitzGerald: We ourselves are, indeed, in jeopardy. It is interesting that when the university membership of the Dáil was recently revised in circumstances we all feel are happy this return to an earlier tradition was greeted with considerable unhappiness in various quarters of the House even though this meant that another group of employees at last made their appearance in the Dáil virtually all the members of which are self-employed or employers or managers of some kind whether in agriculture or elsewhere. To be in a country where two-thirds of the people are employees but in practice this excludes them from membership and where then anybody who is self-employed and becomes a representative in his vocation to such a degree as to be made a director of a state company or be given an opportunity to play any particular part in public life is thereby excluded from  Parliament is to ensure, bit by bit, that you narrow Parliament to persons less qualified to act in it.
Dr. FitzGerald: We managed. I have felt this all my life. It is not a view I have acquired since I became a Senator or a Dáil Deputy. Before entering politics I was increasingly disturbed by the traditional exclusion of persons from Parliament. From the time they are appointed to a post they are ruled out of Parliament and where the Parliamentary talent is limited as it is here because our population is so small, you start with a great disadvantage. In Britain, in France, in Germany and elsewhere there is a wider range of talent because of the bigger population. Here you effectively rule out all employees, except trade union officials and now, of course, university staffs. The remarkable thing is that we have been legislating so well, considering all the exclusions. This cannot be done without ill-effects. I have been always opposed to this practice which is particularly ludicrous in regard to the Seanad and above all in regard to university Senators.
The ideal university Senator would know more about the whole university field and the concept of a conflict of interest in cases like that is antiquated and absurd and we ought to try to get away from it. There is no pecuniary interest. A man who is fulfilling a function in the arena is qualified for Parliamentary representation yet is debarred from it. Perhaps it is thought that he might disclose confidential information in relation to his institution but there is no reason in the world to believe that a man appointed to this body would do so. It seems to be a pointless maintenance of a bad tradition which we have maintained in this country. It was instituted in quite a different country for quite a different reason in quite a different century.
Dr. O'Donovan: There was at one time in the Minister's party a Deputy who was an official of the ESB, though one was supposed not to be in Dáil Éireann if one was an ESB official. He was away down the country. It is a huge body. I remember the man's name but I will not mention it. This was 15 or 20 years ago and he was a Deputy for a midland constituency. I agree with Deputy Thornley's amendment though I do not think it is right as it appears on paper. We have this rigid stonewalling here. We had it on the Redundancy Payments Bill. Although there were 50 amendments only about three were accepted.
Mr. Faulkner: I have given my reasons as to why I cannot accept these amendments. Deputy FitzGerald said certain people were precluded from membership of the Oireachtas. There is nothing to prevent a member of An tÚdarás resigning from that body.
Dr. Thornley: The Minister referred largely to Deputy FitzGerald's amendment but not to mine. Can he not accept the watered down version of my amendment which is a watered down version of Deputy FitzGerald's? Would he not agree that the members of the Higher Education Authority——
Dr. FitzGerald: The purpose of the amendment is to ensure that commission of some minor offence would not make it inevitable that a member of the authority would lose his job. The amendment was suggested by student representatives who felt that if one of them became a member of this body and was involved in some demonstration or other as a result of which he received some minor sentence he would then be automatically dismissed from the authority. This would not be, perhaps, the intention of the authors of the Bill. Therefore, some alteration is required. Clearly, we do not want criminals serving on this board. It is possible for people to commit some minor offence which does not carry any great stigma with it.
|Last Updated: 15/09/2010 05:33:16||Page of 48|