Published Fri, Feb 18th, 2022
In introducing the second stage of the Higher Education Bill in the Dáil on January 26th, Minister Simon Harris stated that in his understanding the objectives of Higher Education are:
To provide “high-quality teaching which is innovative and adaptive to the needs of the learner. Higher Education brings benefits to wider society by advancing equality, diversity and inclusion. Higher Education creates knowledge and contributes significantly to social, economic and cultural development.”
This is a very welcome statement. The specific content of the legislation that is eventually adopted by the Oireachtas must be expected to reflect this vision - but many of the known proposals so far do not give confidence that this will, in fact, be the case.
The existing legislation governing the sector, dating from 1971, is more than half a century old, so it is appropriate that it be reviewed. But it is also true to say that much of the existing procedures and regulations continue to stand the test of time and should be updated and enhanced rather than replaced.
Key Areas in the Bill:
Role of The Higher Education Authority:
According to the HEA website, the Authority currently:
- “is the statutory agency responsible for the allocation of exchequer funding to the universities, institutes of technology (IoTs) and other higher education institutions (HEIs).”
- “has a statutory responsibility, at central government level, for the effective governance and regulation of higher education institutions and the higher education system.”
- “works to ensure that … we have due regard to institutional autonomy and academic freedom”.
Thus, the HEA currently has three clearly specified, and immensely important functions; Funding, Governance and Academic Freedom. Any reformed legislation should be crafted in such a manner which not only maintains and strengthens these roles but prioritises them.
The Bill, before the Oireachtas, seeks to clarify the role of the HEA. However, there is instead a clear risk that it may transform the HEA into a type of ‘Regulator’ rather than a strong and independent authority advocating for the needs of the sector.
The role of the HEA in advocating, promoting and supporting higher education must be clearly provided for, and guaranteed, in the new legislation.
The Bill states that the CEO of the HEA "shall not question or express an opinion on the merits of any policy of the Government or a Minister of the Government or on the merits of the objectives of such a policy".
It is difficult to see any justification for such a provision which is consistent with any concept of democracy and freedom of opinion and debate. It seems uniquely out of place in the governance of a sector having such concepts as part of its very identity.
The HEA retains a key role of advising the Minister on the level of public funding required to enable Universities to fulfil their responsibilities. In this connection it is no harm to recall that in the ‘Review of the Allocation Model for Funding Higher Education Institutions Final Report’by the Independent Expert Panel for the HEA, (Dec 2017), RGAM Review: Data analysis and Modelling (hea.ie), the panel addressed existing governance issues clearly:
“We are conscious of the significant attention given to governance matters in higher education in recent years, and the introduction of a governance framework for the higher education system by the HEA to provide clarity and oversight on responsibilities in this regard. … This was recognised by the HEIs themselves, and we propose an enhanced focus on governance within the system performance framework.”
Best practice should, therefore, involve Policy Setting by Government and Policy Implementation by relevant agencies such as the HEA.
Clarification on any new powers proposed for the Minister or the Department and how these may diminish the function and status of the HEA is clearly imperative. Similarly, the potential of such new powers to remove autonomy from our Universities is also deserving of close scrutiny, particularly in view of the Programme for Government’s aim to ‘utilise the system performance framework to drive accountability’ in Higher Education.
Discussion on ‘academic freedom’ is not merely an ‘academic issue’. Universities are central to economic and societal development and well-being and their continued vibrancy is of vital importance to the future development of Ireland as a society as well as an economy.
Autonomy and initiative have driven the delivery and contribution of our Universities in the past - there is no valid reason now to interfere with this successful model.
The absence of a reference to academic freedom exacerbates fears that funding, course development, and academic freedom will be subject to increasingly greater direct government control.
Section 9 of the Bill states that the HEA should provide value for money for the funding provided to third level institutions. This may be a pretext to place an undue emphasis on a purely monetary valuation of degrees and study programmes and modules.
The provisions for academic freedom must also be extended to recognise institutional research autonomy.
Governance and the Principle of University Autonomy:
It is disturbing that in this Bill there is no mention of autonomy at all, not even to acknowledge explicitly the recognition of autonomy in the Universities Act. This is ironic at a time when the President of Ireland is speaking of the importance of academic freedom and the value of the university.
The Bill is flawed in a fundamental way: We have a funding crisis, a crisis in student hardship and mental health and a steady increase in centralised bureaucracy. Yet the Department of Further and Higher Education appears to view the key challenge in higher education as governance - but there is no indication of the problem in governance which the Bill is supposedly meant to resolve.
Section 67 of the Bill is draconian in the range of powers it gives to the Chief Executive Officer of the HEA (not even to the Board) to impose a series of penalties on HEIs, including the withholding of funding, refunds of funding and 'imposition of an issue rectification plan with specified targets and monitoring requirements.' This last proposal is entirely incompatible with institutional/university autonomy and should be removed or, as a minimum, substantially re-worded. The HEA CEO will have powers to implement a wide range of sanctions against the universities without having any of the responsibilities which should accompany such power.
Rigorous accountability procedures are appropriate in Universities as autonomous institutions. Stricter controls will not enable a poorly funded system to perform better. The funding shortfall across the sector needs to be addressed. Commitments to enhancing funding to an adequate level should be made simultaneously with the debate on the Bill in the Oireachtas.
The HEA should provide regulatory oversight but each University governing body should have the flexibility and authority for independent internal governance. In recognising the autonomy of the Universities, the legislation must not reduce the size of the governing authorities or impose additional regulation as to how such authorities are to be populated.
There is a need to clarify any references to ‘guidelines’ in the legislation. Also, and importantly, the extent to which these will, in fact, become de facto binding ‘directives’ to Universities must be clearly and explicitly limited.
Codes or guidelines must continue to be developed in partnership with the sector, not imposed upon it.
Any new requirements or sanctions must be clearly understood and clearly defined and limited.
Colleges should have appropriate mechanisms to engage with the HEA prior to any intervention provided for in legislation and governing bodies should have a Right of Appeal regarding such measures. The Bill makes reference to an appeals board with three persons appointed by the Minister. Who will these people be? What backgrounds or experience of higher education will they be required to have?
The Bill follows a rigidly corporate and commercial philosophy to create small governing bodies, dominated by university leaders, ministerial and external nominees (see below). No valid justification for this historically significant change is evident.
The CEO of the HEA may appoint a reviewer to a HEI. However, and worryingly, the powers of the reviewer are not clearly defined and there is no clarity on the 'determination for action' that the HEA may take on receiving the report of the reviewer. The role of the reviewer should be tightly defined and the permissible determinations by the HEA should be outlined. Furthermore, any determinations should be agreed by the Board and not simply instigated unilaterally by the CEO.
There is an appeals mechanism (Section 70) against HEA and/or Ministerial decisions, but the members of the appeals committee are all appointed by the Minister. That therefore, by definition, is not an independent appeals committee. This committee should be constituted as a joint committee of nominees of HEIs and the Minister.
Overall, there is a significant shift of power to the CEO of the HEA and away from the Board. This represents an intensification of the HEA's regulatory power over the HEIs and also an increase in the Minister's power. Once again, this departure from historic practice and best international norms is not justified either in the Bill or in accompanying documentation.
Size of Governing Bodies:
The Bill curtails staff representation on governing bodies and assumes, without any actual evidence, that having a majority of external members is superior. It has an 'upstairs, downstairs' attitude to both academic and professional staff who are not seen as worthy of significant influence in the governance of their own institutions.
There are clearly established dangers in shrinking governing bodies so dramatically and the risks, in terms of loss of expertise, are significant. For organisations as complex as HEIs, particularly the larger ones, five internal members of staff is a very small number to bring all the competencies required to the table of a governing body. Also, there is no indication that more ministerial nominees will lead to greater diversity - in the past ministerial or external nominees have had a strong bias toward business and corporate appointments.
The Bill constitutes a direct attack on the autonomy of our universities and clearly regards academic staff representation as, at best, a nuisance on academic governing bodies. The Irish Congress of Trade Unions in its excellent submission to the consultation on the Bill pointed out that the academic institutions with the highest reputation and most effective track record worldwide are also those which enjoy the highest level of autonomy - a message clearly lost in the drafting of this Bill. It is hardly coincidence that the two highest-ranking Universities in the UK (Oxford and Cambridge) are precisely those where governance by Academics has not been diluted by external governance influence.
We are not at all opposed to the presence of external representation on university governing authorities. However, the excessive deployment of such representation on these authorities would be a significantly negative and inappropriate development. Higher Education is different in kind from the provision of, for example, health or utilities or other services. The Universities deal, fundamentally, in ideas and concepts. Governing bodies comprised predominantly of other or competing interests would be inappropriate and destructive of the historically successful University model.
During debates on the Universities Act in 1997, the then Minister for Education attracted criticism for proposing a minimum of three ministerial nominees on governing bodies that varied between 20 and 30 members. The current Minister is proposing boards of 17 with a majority of external nominees and a minority of staff from each institution, with the exception of Trinity College, Dublin. But here too, the proposed changes to the governing body will reduce staff representation and curtail the number of elected staff members on the Board of TCD. The insistence on cutting student representation by half in the name of consistency is indefensible and bizarre.
Ironically, the so-called 'best practice' enshrined in the Bill is completely inconsistent with the practice in other statutory bodies such as Education and Training Boards which have a membership of more than 20. It is even more at variance with elected councils, for example Fingal County Council has 40 members and Dublin City Council has 63.
The Government cannot expect academics to keep colleges open by working face to face in the hazardous conditions of a pandemic and then deny them any influence in the governance of their own institutions.
The governing bodies’ size should be adequate to accommodate all stakeholders; students, staff, alumni, funders, enterprise partners, local communities, government and society. This can be provided for without compromising a feature of governance which has been proven worldwide to be appropriate for universities.
Given issues in the recent past related to discrimination, the new legislation should address diversity and gender balance on governing bodies. It should also draw its model from the commitment to implementing the Gender Action Plan as per the Programme for Government. gov.ie - Gender Action Plan 2018 - 2020 (www.gov.ie)
Academic Councils, specifically because of their unique and irreplaceable role in universities, should not be interfered with and Council Members should continue to be drawn from across the University community.
In instituting its initial review of the HEA in advance of this legislation, the government did not address or acknowledge principles or issues around funding. This deficiency has been replicated in the Bill.
The majority of universities now receive less than 50% of core funding from the State. Parliamentary Budget Office – An Overview of Tertiary Education funding in Ireland – Publication 72 of 2019 (oireachtas.ie) This is not acknowledged in the proposed new arrangements.
All legislative reform must be based on the Programme for Government’s commitment to ‘develop a long-term sustainable funding model for higher education, in collaboration with the sector.’
This would help to reverse a process of state disinvestment in the sector, which has also been accompanied by a redefinition of that investment. For example, the recent €300m Human Capital Initiative involved the state stealthily increasing control on the allocation of funding. Funding decisions and direction are being increasingly removed from the existing HEA, even in advance of any new legislation.
Any new or additional obligations on universities will require sustained additional resources. New ‘laws’ for the sector, without adequate funding, will be meaningless, or worse. The HEA should, therefore, have a role in ensuring that the sector is adequately resourced.
Sections 37 and 42 enable the HEA to set out funding criteria and to withhold funding if these criteria are breached. Adequate funding is, however, needed for many policy areas to be delivered on and this is not addressed in the Bill.
There are two references to value for money in the Bill in the sections on public expenditure, 8(1) and 9(1). This further emphasises a ‘business model approach’ which, in a context of chronic underfunding of the sector is beyond ironic.
The 2017 ‘Review of the Allocation Model for Funding Higher Education Institutions Final Report by the Independent Expert Panel for the HEA’ referred very specifically to funding issues as follows:
“… having analysed system finances, operations, performance and outcomes, it is the clear view of the Expert Panel that Ireland cannot continue to increase student numbers without a commensurate increase in investment. …”
This finding must be addressed in the new legislation to ensure that ‘value for money’ is also provided for Institutions, their staff and students. Significant increases in class sizes and unprecedentedly high student:teacher ratios need to be addressed.
There seems to be a deep misunderstanding of what research-intensive universities contribute to the country. They are more than just places for teaching or instruction.
The HEA should have a designated role in the promotion and support of research, the development of research policy and the provision of a key component of research funding.
The Bill aims to "promote, support and fund excellent research in the higher education system across all disciplines ..." But there is an absence of recognition of actual Researchers and the many serious research contract issues. Postgraduate and PhD staff are employed on extremely low pay with precarious contracts. Unfortunately, the Bill is silent on this issue.
The HEA should have a clear function to support higher education research and researchers. Its role should be fully recognised and strengthened and should also include a research advisory role.
The Bill must address and arrest the drift to a ‘skills based’ education model, and reliance on funding that is influenced and/or controlled by short-term business imperatives.
Any data collected by the HEA to fulfil its statutory functions will be covered by GDPR considerations. Nothing in the Bill should enshrine or facilitate a right of Universities to retain the intellectual property of Lecturers and other members of the academic community.
The Bill should be viewed as the culmination of a process in a long-term strategy to restructure universities within the higher education system. The process commenced following the 2008 economic crisis with unprecedented cuts in funding. These resulted in a drastic deterioration in teacher:student ratios at third level relative to other sectors of education. Simultaneously, there was an historic reduction in state funding per student to such an extent that this funding fell below that in second level for the first time in our history. This situation continued during the period in office of Minister Richard Bruton as manifested in the refusal to restore state funding during a period of economic recovery. It was also linked to a private funding strategy which involved an expanding reliance on the employers' levy and consistent pressure on universities to develop private income streams.
The current Bill may be seen as the third and final strand in this process, seeking to undermine university autonomy and to further promote a 'business' model through, for example, smaller governing bodies with excessive 'external' representation.
Reasons for Optimism/Evidence of IFUT’s Effectiveness:
There is reason to believe that this overall process can now be challenged with some effectiveness. The long-sought appointment of a Minister and Department of Higher Education together with recent budgetary policy that partially addresses the underfunding crisis, shows that pressure from IFUT and others has highlighted the inevitable negative consequences for students, staff and society alike posed by the downgrading our universities.
On this Bill, the Minister, even before Committee Stage, has signalled a willingness to accept an increase in governing body size and has announced exceptions to the general proposals in the case of Trinity College. This concession to reasonable objections, put forward constructively, can and should be replicated with regard to other aspects of the Bill.
The improved working relations developed during Covid between government and university unions has also facilitated discussion and a greater 'listening ear' on proposals from IFUT and higher education unions generally.
This Bill will now go to Committee Stage, probably commencing during February. It is believed that Minister Harris would like to conclude all stages of the Bill before the Summer recess. IFUT has made initial contact with all of the political parties to offer specific briefings, aimed at
(1): winning greater government parties' support for our proposals and
(2): encouraging amendments from opposition parties in order to improve the Bill.
This work involves a series of meetings and other contacts following Executive discussion and refining of our position and proposals.
Key points to be raised include:
- Governing bodies to be of adequate size to allow representation from all stakeholders in higher education.
- Retention of the role of the HEA as the central policy implementation organisation for higher education.
- Clarification that the HEA provides general oversight for universities, while internal governing bodies retain autonomy in decision making,
- Guarantees in the Bill to protect academic freedom, to include research autonomy.
- A recognition that strengthening of governance and regulatory requirements must be delivered in an environment of increased and adequate state funding.
- Measures to be included which address both discrimination against research and researchers and the proliferation of precarious employment contracts and practices in our universities.
- Nothing in the Bill should enshrine or facilitate a right of Universities to retain the intellectual property of Lecturers.
- All legislative reform must be based on the Programme for Government’s commitment to ‘develop a long-term sustainable funding model for higher education, in collaboration with the sector.’