Wednesday, 21 July 1971
Seanad Eireann Debate
Professor Dooge: As I indicated before the interval, the purpose of this amendment is to make it absolutely clear that in all their functions An tUdarás are entitled to concern themselves with research of a university type as well as with the other activities which are subsumed under the title of higher education. I pointed out that in section 10, which is concerned with the assessment of the amounts of financial provision, it is quite clearly stated that what is meant here is higher education and research, whereas in sections dealing with other functions of An tÚdarás not concerned with the detailed assessment of the amounts of money to be provided but rather with the whole promotion of higher education we find  that higher education is a phrase standing on its own.
Section 3 is concerned with the general functions. Section 6 is concerned with the review of the demand and need for higher education. If we look at section 12, which is concerned with the actual payment out to the institutions of the moneys assessed in section 10, we find the phrase “higher education” only. It is not for me to explore the mysteries of draftsmanship, but I suggest that there is to the ordinary reader, and that means to the legislator, some doubt here as to whether there is not in this Bill a different meaning between the phrase “higher education” and the phrase “higher education and research.” If there is not a different meaning, one would have expected the same term to have been used throughout. If there is a difference of meaning, I fail to see the reason why there should be a difference of meaning and a difference of treatment in regard to higher education, including research, and higher education excluding research.
It is for that reason I have put down this amendment to make it clear in the definition of the section that all references in the Act to higher education include references to that type of research which is appropriate to institutions of a university standing.
Mr. Faulkner: As I see it, the basis on which this Bill is drafted and on which it has been so styled is that research is a branch or activity of higher education and that the expression “higher education” includes that activity. I do not think it is necessary or desirable to include in the Bill a definition which would spell out the obvious fact that higher education includes research of an appropriate type and standard.
There are further difficulties in relation to this amendment. The primary fact is that one of the specific functions given to An tÚdarás, as mentioned by Senator Dooge, in section 10 (1) is to assess the amounts which they recommend for higher education and research.
Section 3 makes it clear that the general functions stipulated in that  section are in no way in substitution of any of the specific functions. To include a definition, as is proposed by the Senators, would merely confuse the issue wherever there was reference in the Bill to higher education and research.
In the context of the reference in section 3 to the specific functions of An tÚdarás and to the fact that these specific functions include assessing the financial provision to be made for higher education and research, the references in section 3 are no more than general references. The fact that they refer to the development of higher education on the one hand and to the promotion of an appreciation of the value of higher education and research on the other hand, does no more than lay stress on the need to refer to research when speaking of promoting an appreciation. As I said on the Committee Stage the people who will be primarily involved here will be the parents of students and employers. Research is an inherent part of higher education, but this might not be readily apparent to those people.
With general reference to the Bill, first of all we start off by defining what an institution of higher education is. The definition includes institutions which engage in higher education in all its aspects including teaching and research. There is no definition of an institution of higher education and research nor in that context to my mind is there any need to have such a definition. If you look at section 5, where there is a reference to institutions of higher education, or in fact to any of the sections where there is such a reference, there can be no doubt whatsoever, in my view, that the reference also includes a reference to research. Apart from the fact that the amendment put forward by Senators Dooge and Kelly is quite possibly bad by definition, in my opinion there is no need for it.
Mrs. Robinson: If this is so and if the Minister is clear that every reference to higher education includes research, would he accept that it is too late to put forward an amendment on Report Stage. Why not drop the word “research” then from the sections in which it appears?
Mrs. Robinson: What about sections 10, 13 and the other sections. It does not make sense. If the Minister is adamant that it does not need to be included in some sections, then why must it be left in others?
Professor Dooge: I appreciate what the Minister has said in this regard. It would be intolerable if the understanding of the Minister proposing this Bill were anything other than the fact that higher education, which is the responsibility of this Authority, would include research. Accepting the position that higher education includes research, a difficulty arises because of two phrases which are used in the context of the various sections of this Bill—on the one hand, the phrase “higher education” standing alone; on the other “higher education and research.” As long as it is absolutely and ultimately clear that higher education does include research in each and every section of the Bill, that An tÚdarás in their duties will not neglect this extremely important aspect of higher education— on that we will have to wait and judge them when they are appointed and in operation—this is not a very serious point. Nevertheless, the Bill would have been clearer if the one phrase had been used throughout. The word “research” is perhaps used here from the point of view of emphasis. In this regard there is some significance in the sections in which it is specifically mentioned, although this emphasis should have been given in other ways.
Looking at the whole Bill, as it stands, I am not quite sure of the number of times in which higher education is mentioned. The need of appreciating it is certainly mentioned. There is, of course, need for emphasis here and I  do hope that An tÚdarás will have regard to that. There is also a need for money in regard to research. I hope that An tÚdarás will not be found wanting in this particular respect. Furthermore, the word “research” is mentioned in regard to studies. I hope again that An tÚdarás will find time, even in its early years, to take up the study of the particular problems that concern research in this country. We do not have perhaps as good a strategy of research as is appropriate to our conditions.
Research in universities is played in an international league. Our disadvantages of finance and manpower make it extremely difficult for us to compete. It is only by focusing on certain areas, where we can make a special contribution for one reason or other, that we can remain within that international league. I hope that An tÚdarás will take the initiative in commissioning, undertaking and publishing studies in regard to the development of a strategy of university research that will enable us to carry on. Research in Irish universities in the past has been almost a matter of heroic virtue, such have been the conditions. While we do not want to lose all our virtue in the future we would be glad to do without some of the hair shirts we have had to bear in this regard.
In the discussion which we had during the Committee Stage of the Bill we finally managed to hammer out between us on all sides of the House that section 4 was not intended to have any legislative effect but was to be, in Senator Brugha's words, an encouragement, a reminder. Basically, I still disagree with the inclusion of sections in Bills of the Oireachtas which are no more than forms of encouragement and reminder. The closest we have  come to this in legislation, it seems to me, has been in the inclusion of various sections for clarificatory reasons. I am not all happy with this approach, which involves inserting vague aspirations into legislative instruments. If, on the other hand, we are to have a section like this in the Bill it was my contention on the Committee Stage, and it is still my contention, that the wording can be considerably improved.
When I spoke on the section itself during the Committee Stage debate the Minister complained that he found it difficult to follow my arguments. On reading the unrevised version of the debate I found myself in sympathy with him and I have gone to some trouble to spell out exactly what I mean in my objection to the section in its present form. The section contains two words which I believe should be deleted for vagueness. These are the words “national aims”. I have gone to the trouble to look up the definitions of the words concerned in the Oxford English dictionary and I strongly believe that they support my contentention. The dictionary definition of “nation” is “the whole people of a country frequently in contrast to some small or narrower body within it”.
When we use the word “nation” in this section, in what sense are we using it? It seems to me that we are not using it in the sense which the dictionary gives it, but in a different sense completely. The word “national” in effect in this section, as unamended, means “pertaining to this State”—not pertaining to the whole people of Ireland. The adjective “national” is described by the Oxford English dictionary as “of or belonging to a or the nation, affecting or shared by the nation as a whole”. I underline these last three words “as a whole”. In this section, as unamended, we are attempting to legislate on a national basis but are in fact using sectional terminology. This confusion of terminology between the nation and this particular state is at the root of my objection to this section in its present form.
On the Committee Stage debate I referred to the Constitution and it is relevant to refer to it again. The Constitution does not define any  national aim with regard to the language. It defines the language quite properly as the national language, but it does not attempt to define the national aims for the simple reason that there was no way at that time of adequately finding out what the national aims were. I suspect that the situation which obtained at the time when that Constitution was brought into force is still basically the one which is in effect today.
We have, unfortunately, consistently acted in our legislation and in the taking of public attitudes as if the nation and the present State, which has jurisdiction over 26 Counties, were in some way coterminous. On the occasions in which we deign to recognise the existence of a large and important body of Irishmen to the north-east of us we consistently arrogate to ourselves the right to speak for them, especially where the quality of Irishness is concerned, as if we were in possession of some special revelation that is being denied to them.
This is particularly true of our attitude to the Irish language. Whether the Government's present aim with regard to the Irish language is something which can be said to be shared by the nation is, I would suggest, something which will be very difficult for us to find out. The restoration of the Irish language is my aim and is the aim of this State, but we must avoid falling into the confusion of discussing the policies and the aims of this State as if they were without further discussion the policies and aims of the nation.
Many things have been said and will be said about the people in Northern Ireland, but two things can be said about them with some certainty. The first is that the majority of them would regard themselves as Irishmen in at least some form. The second is that the very great majority of them resent very deeply the activities of people who claim, often very vociferously, to speak on their behalf. In saying this I am not subscribing to any sort of two nation theory. I am simply submitting that any discussion about national aims, what they are and what they are not, should be carried on with a sort of decent restraint pending any reunification of  our country. I should hope indeed that the majority of Irish people would subscribe to the kind of aim which finds expression in section 4. For the moment I suggest that it would be wiser and less divisive not to attempt to speak on their behalf until they have had an opportunity of speaking for themselves.
That is what this section in its present form claims to do. I would go even further. I would suggest that the longer this State continues to proclaim as national aims something which pertains only to this State at the moment, the less chance it has of getting truly national priorities accepted for what they are by the people of the whole country. There is a very simple reason for this. There is a real danger that the people of Northern Ireland, because of their genuine and very often justified distrust of the activities of the Government in the Republic, may throw out the baby with the bathwater. There is a danger that, in reacting against the insubstantial and often misleading and sectional rhetoric of Irish Government spokesmen, they may also jettison the underlying reality.
To be more concrete, I believe that whatever goodwill exists for the Irish language north of the Border it is imperilled because of the implication in this section—and it is an implication which is reinforced in other forms of legislation—that full adherence to the present policy of the Government of the Republic is in some way a tradition of being accepted as an Irishman. Does this mean, therefore, that we have to remain silent about the Irish language? I do not believe so. I believe that we should proclaim it to be what it is: the Irish language, the national language.
I would refer the House to another definition of the word “national”. It also finds a place in the Oxford English dictionary. “National” means “peculiar to the people of a particular country, characteristic or distinctive of a nation.” I do not think anybody disagrees that the Irish language fills this description absolutely perfectly and completely or that the Irish language can and should be described as the national language. Where we have difficulty is in transferring  the adjective “national” to the word “aim”.
The same is true, to a certain extent, of the word “culture”. I feel—I would be interested in the Minister's observations on this—that the drafters of this section, whoever originally drafted it in the form in which it found a place in earlier legislation, had a rather sectional idea of Irish culture in the sense that they identified it totally with Gaelic culture. I believe that Gaelic culture is Irish culture, but I do not necessarily believe that Gaelic culture is coterminous with Irish culture. The sheer impossibility of defining the word adequately makes me wonder at the wisdom of putting it into a legislative instrument like this.
The form of words that I have suggested to take the place of the words that I object to is, I submit, more accurate in terminological terms, less divisive, and has the additional advantage of simpler words.
Ruairí Brugha: I have been very interested in hearing Senator Horgan's observations on the amendment which he and Senator Robinson put forward. I have read and studied it and the conclusion which I have arrived at is that, if this amendment were to be accepted, it would considerably weaken the intention of section 4. I will read the section as it would appear if amended:
I do not want to go into too much detail on the amendment but I would feel that that amendment, certainly the description, “the future of the Irish language” would raise immediately in some minds the whole question of whether the Irish language has or has not got a future. In comparison with the original section, it leaves out the entire picture most people would have of the whole idea of language, culture and identity.
I do not presume to speak on behalf of everyone, but it is a general question  of outlook that is important here. Senator Horgan has covered a fairly wide area and I should like to preface my remarks by saying that we are engaged here in an examination of the means and methods which have been employed over the past 50 years in relation to the question of language, culture and identity. I think it will be some time before we have arrived at a satisfactory conclusion.
At an earlier stage of this Bill I described section 4 as being to my mind inadequate in the sense that I had never seen anything that would adequately describe what is the sense of the aims in relation to language and culture. To some extent what was in my mind was the effect that time has on words. When one talks about culture here in this day and age and when one talks about the Irish language, it invokes different feelings in the minds of people to the feelings and attitudes that would have been evoked perhaps 50 or 60 years ago. This is a sort of erosion that takes place in relation to the use of words: they become almost clichés in the minds of people.
Nevertheless, the true meaning of the words does not change. It is to some extent the attitude of people towards words, because of the way in which different words have been used by different people and different organisations, that is changed. This is one of the handicaps, from which the Irish language has suffered over a number years, both to some extent from those supporting it and from those who tend to be antagonised by the methods employed to try to strengthen it.
Senator Horgan referred to national aims, and in doing so referred to the dictionary and implied that it must mean the aims of the State. I do not want to go into the problem that we have. God knows there has been enough talk about it and there is a serious enough problem of division in this country, but I would say in relation to this aspect of it that one should attempt to do what one can irrespective of whether the country is divided or not. In this sense, while not presuming to speak on behalf of any particular group, I think the words “national aims” here refer to the nation. I would  also suggest that the word “culture” here does not relate to Gaelic culture alone, which Senator Horgan spoke of. It is not referred to here.
There are other traditions which we, I think, must respect, and encourage the best that is in them and that they can give to us. I understand what Senator Horgan has in mind when he speaks of “decent restraint.” The section does not appear to me to be unrestrained. One has to try to look ahead to a period when we will not be here, if I might express a personal opinion, what is described as the minority in the north-east have been released from the historical prison in which they find themselves. Then one will find these people, the Protestants of the North, far more interested in and far more enthusiastic about the question of a language and our identity than one has found in the past couple of generations here in the rest of the country. I know, from personal experience of meeting what I might describe as Protestants from the North who have discovered Ireland, that their interest and enthusiasm for the Irish language in particular does not have any bounds.
I would be the last to encourage the use of words which would in any way whatsoever put off people in the North, but I do not think the description in this section, which is idealistic to say the least of it, should have that effect. I know that all sorts of arguments are used by a particular political element in the North to suit their own immediate political situation and that questions of compulsory Irish and various other things have been used as political arguments. Other arguments, such as the disparity in social welfare payments, have been used but most of these arguments are merely used to cover up an attitude of mind which does not want to have anything to do with us at any price. This is an attitude of mind that must change eventually. I do not want to go into it too deeply here. It is founded on a history of fear and of prejudice.
We are entitled to express here—and it is not a legal expression in my opinion—the generally accepted wording such as “national aims.” We are  engaged here in a re-examination of the methods and the means which have been employed in relation to this problem of language. The intentions of those who introduced Irish into the schools over two generations ago and of those following them have always been the best. The methods have not. We have to conduct a continuing examination of the effect these methods are having on progress in relation to Irish.
As this Bill deals with higher education and not with the Irish language, I do not wish to go too far into that subject. I would merely repeat, in conclusion, what the Minister said while speaking in Irish, that the language is something that belongs to the nation. It does not belong to any section or group. It will, I hope, belong to the people to whom Senator Horgan referred and one would hope in the future that it will come into use in the North of Ireland.
Meanwhile, I think we should be content with setting out what is an ideal in the best way that we can. We may, over the next few years, arrive at a better way of describing it. If one is trying to do so in a short couple of sentences it is hard to find better wording than we have got here. I could amplify this considerably and possibly give more expression and meaning to it, but I would need a page to do so. In the meantime I am satisfied that this describes, in so far as we are able to, the national aim we have in mind.
Professor Kelly: I do not wish to prolong this discussion which is not really central to the Higher Education Authority. Although I am sorry on a matter of this kind to have to disagree with Senator Horgan I have to disagree with him in this regard and for reasons similar to those which Senator Brugha has given. We do not need to apologise to people in the North of Ireland for any interest we have in the Irish language.
The desire to restore a language from a position of being moribund, of rescuing it and ensuring that it is spoken again by a viable community in the social sense, is something which is civilised and honourable. This desire  must appear to be so in any country in the world which lays claim to being civilised. People in the North of Ireland, of whichever political persuasion, could be encouraged to see it that way. We should not have to apologise to them for pursuing this aim. If they in the North of Ireland had some linguistic phenomenon on their hands which was unconnected with the Gaelic world and unconnected with the religion or ideology of the majority of the people in this country—if, for example, there were a small enclave of Norse-speaking Protestants in Antrim—we here would regard them as being barbarous if they shamed that enclave out of existence in the name of progress and in the name of rationalising communication. We would think them barbarous if they allowed a natural species, particularly one as unique and as subtle as a language, to disappear simply because it was not easily harmonised with the needs of the modern world for efficiency.
In the same way I would expect a civilised person from the North of Ireland, whatever his political beliefs, to respect the wish of the people in this part of the country to hold on to what is left of the Irish language and to stabilise it at least within its own small frontiers. What the people in the North object to, in my view, is not an interest in promoting the Irish language but the methods by which it is being promoted under which half-hearted attempts have been made to restore it and the unrealistic objectives which have been attached to it.
To speak about making Irish the spoken language of this country before we have ensured that it will remain the spoken language of Carraroe is idiotic, but that is what we have been doing all along. The results are plain to be seen. We have been pursuing and stating these objectives which by any standard are fatuous, while all the time the reality of the language has been draining away bit by bit and day by day. Along with the statement of these ultimate objectives which we could very easily leave to the next generation to fulfil, we have been pursuing the revival of the Irish language by means which have made us a laughing stock inside and outside our territory.
 I do not want to invoke the annoyance of the Chair by making a speech about this subject. The House probably knows my views on it already. Not a month goes by in which we do not see a demonstration of some kind of hypocrisy, sham and bogus pretence, in regard to the Irish language. We debated this section in Irish for a while and I exonerated—if it is not condescending of me to say so—the Minister personally from being a hypocrite in this regard. I know very well he is not.
The language movement for too long has been conducted by people who were content, and were allowed to be content, with mere gestures and it is not surprising that the majority of people in the whole of Ireland are sick and tired of the revival as they have witnessed it up to this. Not a month goes by but the people get some proof of the idiocy of those conducting it.
What is a man in the North of Ireland to think on reading that a lady from Chicago, who does not know any Irish and never will learn any Irish, is being brought over here at colossal expense to advise us on what the Irish public attitudes to the Irish language are? It is situation which Jonathan Swift might have invented. Nobody with a lesser degree of satirical imagination than he could possibly have invented it. Yet this Government has made it a reality.
That is the kind of thing that Senator Horgan should be directing his fire against and not against this relatively innocuous section which, I think, will not make any difference either way. His criticisms should be directed against the methods and objectives which are irrational and unreal and are supported by a great number of time-serving hypocrites who have made the Irish language a hissing and a by-word. It is for that reason, and not for the language itself, that people such as Senator Horgan feel they must offer an apology to the people in the North of Ireland.
Mr. Faulkner: Perhaps I should begin by saying, in reply to Senator Horgan, that there is no question of section 4 being drafted for the purpose of giving expression to vague aspirations. The section places a definite onus on An  tÚdarás and was drafted with that intention in mind. It was drafted in such a manner as to endeavour, apart from any other consideration, to get as much co-operation as possible. I mentioned in reply to the Committee Stage debate that I am personally interested in the revival of the Irish language but I am more anxious to make friends of the language than enemies of the language. For that reason I have stressed on many occasions, and particularly in the Dáil, that I have not claimed at any time that the Irish language belongs to my party. It belongs to all parties and to all the people of this country.
Senator Horgan made reference to whether we were concerned with a Gaelic culture or some other type of culture. May I say that it refers to all types of culture. If we were to study more carefully the cultural attitudes in the North, not superficially but in depth, we would find that there is no great difference there in relation to attitudes to culture than there is here.
I agree with some of the remarks made by Senator Kelly, but I would take issue with him on one point. I recognise fully how essential it is to keep the Irish language alive in the Gaeltacht areas. This is, in my view, an absolute essential. As I mentioned in Irish the other day, I played some part in endeavouring to do this by establishing new industries in the Gaeltacht areas so as to enable our people not only to remain at home, but to come back to the Gaeltacht areas.
Nevertheless, I take issue with his apparent belief that it would be possible to keep alive the language in Carraroe and in the various other Gaeltacht areas without any effort being made to revive the language in the rest of the country. One of the things that the people in these areas must see clearly before they will accept that there is an obligation on them to keep the language alive is that we in the other parts of Ireland are also interested in the revival of the language, and that we are also interested in having it made a spoken language.
I do not want to go into this question of the universities, but I mentioned on previous occasions that it was essential that the Irish language be taught in our  schools so that our young people would have an opportunity of learning their own language. Then when they became adults, it would be up to them if they would continue to speak it, and I should very much prefer if they did. However, we began at the wrong end of the ladder and, while it was essential that the language should be taught to our young people, more leadership should have been given from the other end of our educational system.
It surprises me that, as may be seen from an earlier amendment on Committee Stage, Senator Robinson and Senator Horgan appear to have strong misgivings as to the form which section 4 takes in its present wording. On a previous occasion and again today, Senator Horgan cast doubt as to whether restoring the Irish language and preserving and developing the national culture could correctly be described as national aims. I have no doubt whatsoever in this regard. Successive native Governments have recognised these aspirations as national aims and, as Senator Horgan stated in the course of the debate on Committee Stage, all political parties put the achievement of these aims high in their programmes, although there may have been differences of opinion in the parties regarding the methods which should be employed in order to achieve them. Senator Horgan also mentioned that during the last general election an organised effort was made by a particular group to make this question of the Irish language an issue in the election, and it was abysmal failure.
I could not accept an amendment which would water down the section or which would appear to do so. This amendment, if adopted, would relieve An tÚdarás of the duty imposed on them by the section as it stands at present of endeavouring to promote the restoration of the Irish language and the preservation and development of national culture. It is precisely to give that duty and function to An tÚdarás that the section has found a place in this Bill at all. To amend the section, as suggested here, to read:
would be to reduce it to a nebulous provision. That is not what I, as Minister, wanted. It is not what the Government intended when the terms of this Bill were being drawn up, and I am sure that it is not what the great majority of the Irish people would wish.
Mr. Horgan: I shall be very brief. I shall try as best I can to reassure both Senator Kelly and the Minister. There was not an ounce of apology in what I said about the Irish language, as he will discover when he reads the report. What I had to say was very carefully thought out. I do not disagree one iota with Senator Kelly about our aims with regard to the Irish language. However, the purpose of my amendment is to try to make it clear that they are our aims, that we are not speaking of people over whom we have no jurisdiction.
In its present form, the section claims to speak on behalf of people over whom we have no jurisdiction at present. I have read up the dictionary for the definitions of “national”, and to the best of my understanding of them, they refer to all the people who are called Irish and who live on this island. The amendment that we are discussing now is an attempt to make it clear that this claim is being made on behalf of the Government and people only, unfortunately, of the Twenty-Six Counties.
Here we are engaged in legislation and we can on occasion spend hours discussing individual words. It is important to use precise language and to use language about whose meaning nobody is in any doubt.
This is why I object to the practice of describing as national aims something which cannot be proved to be national. The only basis on which this section makes sense is on the assumption  that the Irish nation and the Twenty-six Counties State are coterminous. I do not accept this and I tried to frame an amendment to give effect to my belief that they are not coterminous. Amendment, by leave, withdrawn.
This is an amendment to section 11, which many regard as conferring far too much power on An tÚdarás. It can ask from each of the institutions “all such information relative to the institution as it may require for the purpose of performing its functions.” In other words, it can ask any information it likes.
The Minister made the point that An tÚdarás or the ad hoc body and the institutions had already agreed on the form that this information would take. That is not at all correct. It is one of those half statements, or half truths, that we are constantly plagued with. The negotiations and the discussions between the ad hoc An tÚdarás and the institutions—I have knowledge of university institutions only—have centred solely on the type of budgetary information and budgetary control and does not in any way cover the vast field that is open here for all such information. It could be information on any facet of the university, or of the institutions' operations, whether concerned with finance, with statistics or with academic affairs. There is no limit to the amount of information that could be asked on this. In addition, there is no limit to the burden that it could place on the institutions about assembling and collecting this information.
It is right that there should be some limitation to this. The limitation that we have proposed here is a very reasonable one. At least the institutions concerned, if they thought the information asked was unreasonable, could  appeal to the Minister and the Minister's decisions would be, of course, final. It is a very minimal request to ask in the interest of safety. We should have preferred a more definite statement and a more definite delineation of what is to be covered by the information. It is obvious from the debate on the Committee Stage that the Minister would not yield to our requirements and our suggestions about limiting the range of information. As a last resort we are requesting that any institutions which felt that the information sought was unreasonable should be able to submit to the Minister and then let the Minister's decision be final. Surely this is the only way we can balance this?
The attitude seems to be, as one goes down the scale of authority that no restriction should be put on a body dealing with those under them. On the other hand, the hands of those under them are completely tied: they are subject to the bodies over them. This does not seem to be a democratic organisation of affairs. We pointed out on Second Reading and Committee Stage that certain of the powers of the Government vis-á-vis An tÚdarás put An tÚdarás in a position where they had to depend on the reasonableness of the Government in interpreting the statutory conditions set down here.
We have now reached the other stage where the institutions under An tÚdarás have to appeal and depend solely on the reasonableness of An tÚdarás in interpreting the blanket authority that is given to them in section 11. This seems to be very bad law, when it is up to everybody to act reasonably. Surely the whole purpose of having a law is that it can be used when people are acting unreasonably? We would not need law courts if everybody acted reasonably. That is why in this case what we are asking is very little.
I know the apprehension of the bodies concerned at the abuse of powers that could take place here, especially as it could be carried out by a majority decision of An tÚdarás. Such a decision could well be opposed by all the university members, because they constitute only seven out of 18. Therefore, it could give rise to friction between the two distinct streams of  third level institutions that are encompassed by An tÚdarás—both the university system and the regional technical colleges. It is unreasonable that either of those should feel that they were the subject of any type of a majority vote largely engineered by the other section. It would not lead to good relation. It is the Minister's job to ensure that such should not happen. By letting the Minister have the final say it could well help to dispel friction between An tÚdarás and their subordinate institutions who are supposed to be autonomous.
Mr. Horgan: I will make just one very brief point in support of Senator Quinlan. On Committee Stage the Minister made considerable capital of the reasonableness of the Authority-to-be. All that we are proposing in this amendment is that, if a conflict arises about the extent of the Authority's reasonableness, the Authority should not be judge and jury in their own case. The final accountability in this particular instance should rest with the Minister.
Professor Kelly: I argued long enough with the Minister about this section on the last day and I do not want to repeat these arguments now. I should like to make the additional point which perhaps he has not considered. Section 11 is what would be known to a theoretical lawyer as a lex imperfecta which is a law that imposes duty on somebody but attaches no apparent sanction to a failure to perform that duty.
In other words, so far as the section goes I cannot see that an institution of higher education will have anything to fear if they simply disobey the requirement which the section imposes on them, unless the Minister and his Department have in mind that the function of section 12 will be used in a penal way to bring to heel an institution which does not supply the necessary information. I know quite well that the institutions here are reasonable and that the Authority will quite probably consist of reasonable people, and I do not foresee any conflict. I cannot even sketch out in a hypothetical way a setting in which conflict could arise.  I can imagine in the years to come conflict arising over questions which a university or an institution of higher education might regard as personal and confidential—something to do entirely with their own staff or students, which they would feel were no business of the Authority. A conflict might conceivably arise in a case like that. I think that an institution would be within their powers and within their rights if they say: “No” to the Authority. If they say “No” to the Authority, section 11 contains no sanction or penalty whatever for imposition on an institution which disobeys their obligations under that section.
Section 12 is the section which entitles the Authority to make payments to institutions out of the amounts they get from the State in such manner and subject to such conditions as they think fit. Is the intention that these conditions and this manner is a polite way of saying, in the context of section 11: “Until we get the information we require you will not get a penny from us”? I do not want to make a major issue of this as it is possibly something the Minister or his Department have not thought about, but it is something which can arise in the future. It is foolish to assume that there never will be such a conflict and the House should be told now if the intention is that the obligation of section 11 should be enforced by penalising institutions by withholding funds under section 12.
Dr. Belton: I should like to support what Senator Kelly has said. Perhaps the Minister's answer will be, as Senator Kelly said, that a penalty will be imposed under section 12, by witholding funds, if an institution of higher education refuses to supply information, although there is no specific penalising clause in section 11. That would be a very wrong way of penalising them.
An analogy would be the case of a garage who are refused planning permission. They cannot be penalised by the local authority. They could put up a filling station and erect pumps and a local authority could not withhold a licence for those pumps even though planning permission had not been  granted. If the institutions of higher education were penalised by the withholding of money the effect would be felt down along the line. What may be involved here is the withholding of information of a personal nature which An tÚdarás may not have any legal right to. It may concern a person's domestic life, a political remark or something written to the newspapers. If reasonable information is sought from an institute of higher education and refused there should be some method of penalising that institution other than by recourse to section 12. An tÚdarás, by majority vote, may seek only information concerning the proper running of the Authority and not information of a personal nature.
Mr. Faulkner: I have discussed the question of the insertion of the word “reasonable” on a number of occasions on amendments in the Dáil and on at least one occasion on an amendment in the Seanad. I pointed out that information which is vital to An tÚdarás for the performance of their functions could be withheld on the grounds that it was not reasonably required and we would have a stalemate.
Senator Quinlan has added to the original amendments. I will deal with this presently. The information which An tÚdarás will require from any institution will be related almost entirely to matters pertaining to the provision, financial and otherwise, to be made for the institution concerned. The manner in which such information will be supplied has, as I already stated here and in the Dáil, been agreed. Nothing more will be involved in relation to further requests for information than the type of information which they have traditionally been supplying to my Department. I should like to mention that much of the information which was requested by us from these institutions and given to us related to Dáil questions. I am sure no Member of the Seanad would suggest that we should not be enabled to get this information if it is required by the other House.
I have mentioned on a number of occasions the somewhat remarkable fact that Senators have taken great  trouble on the one hand to ensure that An tÚdarás be vested with the greatest possible autonomy and freedom and on the other hand they have introduced amendments which would restrict the power and dilute the discretion which the terms of the Bill bestow on An tÚdarás.
In relation to this amendment I must repeat once again, though Senator Horgan has referred to it, and I make no apology for repeating it, that we must assume that An tÚdarás will be a reputable body who will perform their functions in a responsible and reasonable manner. If we go on the assumption that this will not be so, we should have to restrict and circumscribe An tÚdarás to such an extent as to make them a completely ineffective body with practically no freedom of action or powers of discretion.
I do not accept the likelihood postulated by this amendment of An tÚdarás making an unreasonable demand for information on any institution. I do not accept, therefore, that the amendment of the Bill to provide against such a contingency is necessary. Even if a situation where there was disagreement could arise, I consider that the decision in relation to this matter should rest with An tÚdarás. It could obviously be very frustrating to An tUdarás, in theory, if each demand they might make for information could be the subject of appeal to the Minister. The Senators who have spoken in favour of this amendment have objected to the Minister having such discretionary powers as are given to him in the Bill, such as the designation of an institution or the removal of members from office.
We have had a number of discussions on the question of autonomy during the course of the various debates on the Bill as related to universities. I find it extraordinary that any person who would be prepared to speak loud and long advocating autonomy for universities should wish that this would apply only to universities. We must come back to the point that both the institutions concerned and An tÚdarás will consist of rational beings and there will be no question of their going to the extremes  of looking for information that some Senators appear to visualise.
Professor Kelly: Would the Minister be good enough to tell the House whether in making these remarks he is bearing in mind the section which allows the Authority to confer any of their functions on one of their officers or servants? I see the Minister's point that the kind of Authority which he would visualise being set up this year would consist of reasonable people.
Professor Kelly: I could condense it into one question. Is the Minister equally confident that the kind of officer or servant who would be given, by delegation, the function either of requisitioning information or of allotting funds would always be equally reasonable?
Mr. Faulkner: This would be for An tÚdarás to ensure. If an officer of An tÚdarás decided to try to obtain certain information from an institute of higher education and if a complaint were made to An tÚdarás in relation to the type of question he was asking and it was suggested that it was not reasonable, then it would be for An tÚdarás to decide and order him to desist from asking that particular type question.
Professor Quinlan: Before replying, could I ask the Minister one question. It is a vital one and he has not replied to it. In the case of an institution failing to comply with the request in section 11, does he think it reasonable that section 12 could be used to penalise that institution?
Mr. Faulkner: I am not going to make any remark on that. This would be a matter for An tÚdarás but I would not visualise a situation like that arising. I have already mentioned that I feel there can be no question about the fact that we will be dealing with two rational groups. I cannot visualise a situation arising where such a type of sanction would be necessary nor would I like to  see that type of sanction having to be applied. The final decision in relation to this is a matter for An tÚdarás.
Professor Quinlan: I cannot understand what we are doing here at all if the whole world is made up of rational human beings in all societies. We cannot even visualise that any of our laws will be transgressed, therefore we are unable to take steps to cope with the situation when the inevitable transgression takes place. It baffles me what we are doing. It is a complete dereliction of our role as legislators to adopt an ostrich approach, burying our heads in the sands of ignorance and indifference, and failing to comprehend what is likely to occur.
Every Bill that comes before us has penalties and clauses specifying what happens when powers are transgressed. The Minister's statement as to what types of questions An tUdarás would ask of institutions is an eminently reasonable view given by an eminently reasonable man. All we are asking is that this very eminently reasonable view given by an eminently reasonable Minister should be available to the institutions concerned if this very unlikely disagreement between reasonable people occurred. It is as simple as that. I do not think we could ask anything simpler. We are not in any way yielding the autonomy of the university in that, because there is nothing to yield. We tried early on to ensure that autonomy was preserved and this is only a second last resort; in other words, asking a reasonable Minister to act as a reasonable umpire in such a situation. I would be appalled to think that An tÚdarás would use the powers under section 12 to deliberately force the institutions to give information under section 11, information which they considered unnecessary or unreasonable or that undermined their autonomy. Over the past 12 years if I spent my time answering all the fool questionnaires I received from different bodies I do not think I would have time to do anything else.
Professor Quinlan: I generally consign three-quarters of these fool questionnaires  to the waste paper basket. The world goes on just as well, although I have not spent my time trying to answer those questionnaires and the people at the other end have not spent their time trying to deduce something from the answers they got. With all those eminently reasonable people about I would not have too much worry if the people concerned were not solely appointees of the Government. In other words, if a large section of An tÚdarás had been nominated by existing institutions, or at least if the Minister were constrained to select the members from some pool that was provided by outside bodies. I would not be too worried about the fact that reason would prevail if the body was academic in the sense of the University Grants Committee in England.
I warn the Minister, and he has already been warned by academics, that it was taking quite a gamble to have the one body covering the whole of third-level education, especially with the dangers of tensions arising. I do not like to use the words “ganging up”, but that could happen. I hope this will not occur but it is surely one of the things that we should guard against. The main irritant is in section 11. An tÚdarás is primarily a financial body and its incursions into academic affairs should be very limited. I hope the institutions concerned will be on the watch at all times to ensure that is so. The question of academic co-ordination in academic affairs is rightly within the province of the Council of Irish Universities which we will probably be legislating for within the next year or two. I would hope—since there does not appear to be any chance of changing the Minister's mind in this no matter what we say— that within the next two years, when we will be looking at the final shape of the institutions and when we may be dealing with a different Minister and even a different Government, at that stage we will have had time to have had second thoughts on this and devise a more forward-looking practical system of balances and checks than we have got here. I hope, above all, that we will see that section 11 will be rewritten and that the role of the other bodies, including the Council of  Irish Universities, will be recognised and given adequate power. Did I understand the Minister to say that, in regard to Dáil questions, the procedure is that he will have to contact An tÚdarás and that body, will contact the individual institutions?
Professor Quinlan: In much of the information obtained by the Minister opinions will be involved. There may be academic or other questions. I am sure that the happy relations which have prevailed up to this between the Minister and the institutions concerned will continue and that the institutions will co-operate with the Minister in providing answers to—I will not say fool questions on the level of the fool questionnaires that have been asked—questions that are very often of doubtful value. We are on the Report Stage. We have explored every avenue to try to get the Minister to help in this. Short of pressing the amendment I do not see what we can do. Maybe in pressing it we might get some of the Members to walk across the party line and really ensure that we do not altogether become an assembly that bases its legislation simply on the nonexistence of evil in the world.
I will be very brief about this, even though I believe it is a very important amendment. After many hours of discussion, argument about this matter is now focused on a particular point. When we discussed this on Committee Stage, another amendment, in fact a  similar amendment in my name, was rejected by the Minister. In his rejection of that amendment the Minister made considerable play of the fact that he needed two votes in order to supply the money necessary for higher education in this country. Therefore he could not possibly substitute the word “amount” for the word “amounts”.
If I may at this stage seek the indulgence of the house I should like to amend my own amendment, by deleting the words “and research” from the words I propose to substitute in line 43. I am doing this because I accept, slightly unwillingly, the assurance of the Minister that it is not actually necessary to specify research. What I am trying to do now in this amendment is to remove any possible shadow of doubt about the earmarking of grants in the various institutions. We are all agreed about the subject matter of this. We are all agreed that there will be no earmarking of specific amounts for specific institutions. What we differ about is the wording of the legislation which brings this into effect. It is my contention that to include the word “institution”, as is included in this section, leaves it open to a Minister for Education at a future time to earmark grants no matter what the present Minister for Education may say, no matter how great the amount, which indeed I accept completely. The Minister has gone to considerable lengths to spell out for us the procedure he feels sure will be adopted between the Authority and the institutions before the final agreed list of allocations is published as an appendix in the Book of Estimates.
However, the section as it stands is still sufficiently ambiguous to allow a Minister for Education to override this and that is why I put in this amendment. It seems to me to meet every single one of the objections to the original amendments which were advanced by the Minister during the Committee Stage.
Mr. Faulkner: Senator Horgan dealt briefly with this amendment and I will also deal briefly with it. I thought I had dealt with this particular matter on the  Committee Stage. This amendment would mean that An tOireachtas would provide money to be paid as grants by An tÚdarás for higher education and research but not necessarily to institutions of higher education. I would like to point out, as I certainly have done on previous occasions, that the whole intent and purpose of this section is to make moneys available for payments to institutions which are recognised as institutions of higher education in accordance with the provisions of this Bill. What the Senator would appear to wish is that An tÚdarás would have liberty or discretion to make payments in respect of higher education and research otherwise than to recognised institutions. If that is so, then he is suggesting something which, as I explained on a previous occasion, is in conflict with the concept which is basic to this Bill, and for that reason I could not accept it.
Professor Dooge: I find it hard to understand why the Minister takes this attitude. If we look at the amendment and look at section 12 (1), this is concerned with payment from the Oireachtas to An tÚdarás. The Minister has said that the purpose of the whole Bill is that An tÚdarás shall pay to institutions and not otherwise. In fact what the subsection and the amendment are concerned with here is not the manner of payment by An tÚdarás but the manner of payment to An tÚdarás. It would not at all affect the position of An tÚdarás if the amendment were accepted. The Minister seems to think that the only way in which one can ensure that An tÚdarás pays only to institutions of higher education is to make sure that only money which is earmarked for individual institutions shall be paid to An tÚdarás. If it is necessary to make it clear that An tÚdarás can pass money on only to other institutions of higher education designated by the Minister, not to other institutions or to individuals, then I am quite sure Senator Horgan and the other Senators would have no objection to the recommittal of section 12 for the purpose of making that clear either in subsection (1) or in subsection (2) or in the new subsection.
The Minister appears to take the  view that, in order to ensure the payments made by An tÚdarás should be to institutions, which is a matter for common agreement, it is necessary that these funds should be earmarked all along the line. It is against this earmarking by the Oireachtas that the amendment is directed and it appears to me that what the Minister has said does not meet the case in any sense.
Professor Kelly: I should like to support Senator Horgan's amendment for a slightly different reason from those which he himself has given, uncontentious, I hope. There are institutions which are unlikely ever to be designated as institutions of higher education in which research at an advanced level is carried on. Two which I have in mind are geographically very near this building, one being the National Museum and the other being the National Gallery. I wonder if the Minister would consider that Senator Horgan's amendment has the additional virtue that it would make it possible for the Authority, if this amendment or something like it were adopted, to allocate from its general funds grants to people of graduate status working either in the Museum or in the Gallery who needed financial support for the completion of particular projects.
The Gallery has been splendidly restored and anybody who follows the way in which the Government has been working in cultural matters will have to acknowledge that. In other regards the Government's record has not been so good, and the Museum, as the Minister well knows, is in a state of continuing neglect. Part of the complaint which has been made on behalf of the people who work in the Museum is that their facilities for research are so limited, and they are limited for financial reasons. It would be an additional virtue in Senator Horgan's amendment, one to which he himself may not attach much importance, if it were made possible for An tÚdarás um Ard Oideachas to dip into its pocket also in order to assist individual research projects, notwithstanding the fact that they are not being carried out within the walls of recognised institutions of higher education.
Professor Quinlan: I wish to support very strongly the amendment put forward by Senator Horgan. The section as it stands is a most ambiguous one; in other words, it is capable of the legal interpretation that the Minister must approve of the individual amounts for the institutions of higher education concerned. The Minister has stated again and again that that is not his intention and we accept that, but in ten years' time if a new Minister for Education were, under this section, to take it that not alone had he to approve the totals but also the individuals amounts, there is nothing in this Bill that would in any way prevent that action being taken.
We are all familiar with the court cases in recent years on the constitutionality of various Acts and in none of these cases was there any reference made to the pious aspirations of the then Minister as the Bill was being piloted through the Houses, nor indeed to any statement from either the Government or the Opposition benches during the passage of the Bill. All that remains of this Bill when it leaves the House is the printed word and the interpretation that lawyers can put on that word. After it has left the House my interpretation of it, Senator Ó Maoláin's interpretation of it or the Minister's interpretation of it, will all count for nought. It is amazing that after three weeks' debate we are still unable to get satisfactory statements of what the Minister actually intends to do under section 12.
Senator Horgan's amendment would remove that. It would mean that the amount related only to the totals for higher education not for institutions of higher education. I think that is a very positive and definite step forward and one that would make it much harder for a Minister in the future to revert to what has been the practice up to this of the Minister for Education deciding, with the consent of the Minister for Finance, on the grants being made to the individual institutions. If the Minister wishes to ensure that that position does not obtain again, and if he wishes to see to the requests from all quarters that that position should not obtain again, then he has an opportunity here in Senator Horgan's  amendment to do so. It is a very poor tribute to Seanad Éireann and to its power of discussion and deliberation if, at the end of three weeks' talk, we are still awaiting our first change in the most perfect Bill that was ever drafted.
Mrs. Robinson: I should like to support this amendment very strongly. As I said on the Committee Stage, section 12 is perhaps the most important section in the Bill. In the light of the attitude of the Minister and in spite of numerous arguments put forward he appears to be very unwilling to accept my amendment. Now the demand has been cut down to the minimum, by omitting the word “institutions” here for the reasons given. I would add to the reasons given by other Senators by just pointing to section 10, to the recommendations of State financial provision for higher education and research, and to the wording of that section. Subsections (1) and (2) of that section read:
(1) An tÚdarás shall assess amounts of State financial provision, both current and capital, which it recommends for higher education and research or for any part thereof, either in relation to current or future periods.
There shall be paid to An tÚdarás out of moneys provided by the Oireachtas such amounts for higher education and research as may be approved by the Minister with the consent of the Minister for Finance.
...any payment to an institution which An tÚdarás makes under the amounts received under the foregoing subsection shall be made in  such manner and subject to such conditions as An tÚdarás thinks fit.
This does not go the whole way to meet the many points that have been made on section 12 but it does make the point that the Minister can provide the amounts for current and the amounts for capital expenditure, that these amounts will be for higher education and it will be An tÚdarás that will decide in what way these amounts will be distributed to the institutions of higher education. This meets what the Minister has said on the Committee Stage in this House, and he ought to be willing to accept this amendment, even if he might not consider it necessary, he might consider that the arguments being put forward were inherent in the Bill. When the university Senators and other Senators have so forcefully argued it, he might concede this point and accept the amendment for the deletion of the word “institutions” from section 12.
Ruairí Brugha: Unfortunately, the Official Report of the discussion on this section on last Thursday is not available so I have only my notes. Senators seem to be confusing this issue. As I recollect it, it was explained that the intention here was to work on two global amounts, one for current expenditure on higher education and one for capital expenditure. The term “institutions” refers to all of those institutions which would be approved by An tÚdarás. It is not one institution and it is not higher education; it is institutions which would come within the ambit of higher education. Unless I am misreading this amendment, to accept “higher education” instead of “institutions of higher education” would alter the entire situation. You have got to have the word “institutions” here bearing in mind that what was proposed was the setting out of two global amounts for higher education, one current and the other capital.
This type of institution does not apply in Great Britain in relation to the allocation of grants by the University Grants Committee. The universities in Great Britain are just as concerned with their autonomy as the universities here. What is intended here is that all  the institutions of higher education should be included. The amendment would upset this whole situation and would eliminate the institutions.
There shall be paid to An tÚdarás, out of moneys provided by the Oireachtas, such amounts for institutions of higher education as may be approved of by the Minister with the consent of the Minister for Finance.
Mr. Crinion: There are two global amounts, one for capital and one for current expenditure, but if this amendment was accepted An tÚdarás would not have to account to the Minister for the way in which the money was spent. It is important that the section should remain as it is so that An tÚdarás can report back with regard to the amount of money each institution will have received from the two global amounts. This amendment would provide An tÚdarás with a means of withholding from the Minister the actual amount that each institution received. The Minister for Education, the Minister for Finance and ourselves are entitled to know where the money is going. For that reason I oppose the amendment.
Professor Jessop: I find myself in a difficulty in considering this amendment in relation to the mechanics of the  operation. An tÚdarás will consult with institutions of higher education and research concerning the amounts they need. Before An tÚdarás consults with any of those institutions it must recognise them as institutions within its sphere of influence. Having recognised them, it then consults with the institutions, make up its mind about the total global sum required by all these bodies for capital and current expenditure, and then presents the bill to the Minister who then consults with the Minister for Finance and decides how much of this sum can be made available. The sum decided upon must be distributed, in turn, by An tÚdarás for the purposes of supporting higher education and research, but surely it can only do this by giving it to institutions. I cannot see any other way. If Senator Horgan can explain that mechanical difficulty to me I would be in a better position to make up my mind on the amendment.
Mr. Horgan: I am delighted to be able to clear up the mechanical difficulty for Senator Jessop. It seems to me we are looking at the same problem from different ends of the telescope. Before clearing up the mechanical difficulty I should like to isolate what has been said in terms of three issues. There are three issues involved here. First of all, do we need the word “amount” or “amounts”? Secondly, do we need the words “and research” and thirdly do we need the word “institutions”? We have conceded the Minister's argument, and this is what I believe debate is about, on the first two points. However, we are sticking to the third.
For several reasons I am astonished by the worries on the other side about the possible disappearance of the word “institutions”. As Senator Dooge pointed out very adequately, this section is in two subsections. The first subsection talks about the transfer of money from the Oireachtas to An tÚdarás and the second subsection talks about the transfer of money from An tÚdarás to the institutions. A certain amount of alarm has been expressed about the possibility of An tÚdarás finding themselves with all this money for higher education and not  having any institutions to which to give it. If Senator Brugha or Senator Jessop can find a way of establishing a system of higher education which dispenses with institutions we shall all be in his debt, not the least of whom would be the Minister for Finance.
I find it impossible to conceive that the money could be spent in any other way. There is, on the other hand, the point which was made by Senator Kelly. It is not a point which had occurred to me but it is one which I am delighted to be able to underwrite. I see this as a major possibility for the Authority in its work of supporting and financing higher education and research generally.
What saddened me most was the Minister's argument in an attempted rebuttal of my amendment. Having spent three-quarters of the afternoon  defending the reasonableness of the members of An tÚdarás the Minister now replies to the amendment by suggesting that if the word “institutions” was removed from the subsection An tÚdarás would spend their £15 million like a sailor on a drunken spree. He cannot have it both ways. We had discussion earlier on the question of the reasonableness of An tÚdarás in asking for certain information from institutions. Whatever about the reasonableness of An tÚdarás in that connection, I would say that the kind of situation which the Minister described, in his attempt to rebut my amendment, is a one-in-a-million situation which would probably never arise. It is a reflection on An tÚdarás and quite abhorrent.
Eachthéirn, Cáit Uí.
Flanagan, Thomas P.
Honan, Dermot P.
Nash, John J.
Ó Maoláin, Tomás.
Sheldon, W. A. W.
Dooge, James C. I.
Jessop, W. J. E.
|McDonald, Charles B.
Owens, Evelyn P.
Quinlan, Patrick M.
Robinson, Mary T. W.
Question declared carried.
Amendment declared lost.
|Last Updated: 15/09/2010 04:40:38||Page of 17|