University of Limerick president fears for ‘erosion of autonomy’ after controversies

Posted in Governance and administration, Legal issues on August 23rd, 2017 by steve

Ireland“The president of the University of Limerick has expressed fears that the autonomy of universities will be ‘eroded’ if greater powers are granted to the Higher Education Authority. As a result of the UL controversy and high levels of spending in other third-level institutions, the Minister of Education and Skills is finalising provisions to grant more authority to the HEA …” (more)

[Anne Sheridan, Limerick Leader, 23 August]

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Third Level Institutions: Misappropriation of Funds

Posted in Legal issues on October 9th, 2015 by steve

IrelandNiall Collins (Limerick, Fianna Fail): To ask the Minister for Education and Skills the authority or legislation under which she or her Department can establish or order an investigation into the activities of universities, including the misappropriation of funds; and if she will make a statement on the matter …” (more)

[Dáil written answers, 7 October]

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New University Legislation – Government Legislation Programme, Autumn Session 2015

Posted in Governance and administration, Legal issues on September 23rd, 2015 by steve

IrelandPaul Kehoe, TD, Government Chief Whip and Minister of State at the Department of the Taoiseach, announced the Government’s Legislative Programme on 22nd September, 2015:

 

A – Bills expected to be published from the start of the Dáil Session to the beginning of the next Session

Technological Universities Bill, to provide for the establishment of Technological Universities and the amendment of IOT/DIT, HEA and other Acts

Universities (Amendment) Bill, to give the Minister the power to require universities to comply with government guidelines on remuneration, allowances, pensions and staffing numbers in the University sector

Financial Emergency Measures in the Public Interest (Amendment) Bill, to repeal previous FEMPI Acts in line with provisions agreed in the Lansdowne Road Agreement

Public Sector Standards Bill, to reform the existing legislative framework in relation to ethics regulation for those in public office

 

C – Bills in respect of which heads have yet to be approved by Government

Higher Education (Reform) Bill, to modernise the legislative framework underpinning the governance and functions of the Higher Education Authority and the governance structures of the universities – publication expected 2016

Seanad Electoral (University Members) (Amendment) Bill, to implement the 1979 amendment to the Constitution on the Seanad university franchise – publication expected 2016

 

Comments:

For more general comment on the legislative programme, and in particular its snail-like pace, see Harry McGee, ‘Government struggling to meet new legislation targets, Irish Times 23 September.

The government’s current stance on new universities – that it will allow the creation of technological universities only so long as certain precise (and to some minds arbitrary) criteria are satisfied – will have little credibility if it cannot pass legislation to bring this about – for that reason the TU Bill may be regarded as a priority.

The U(A) Bill, by contrast, serves its purpose of disciplining universities best if it is merely held in reserve, and so may not be so urgent.

Other projects have been put on the back-burner – disgracefully so in the case of the Seanad Bill, which even after 37 years has apparently not yet managed to rise to the top of the pile.

 

The Blogmeister

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PAC probes UCC salaries

Posted in Governance and administration, Legal issues on May 15th, 2015 by steve

Ireland“UCC’s president said that he does not know what staff payments the Department of Education believes breach pay rules. He was responding to the department’s claim to the Dáil’s Public Accounts Committee (PAC) that it has found unauthorised payments not previously notified …” (more)

[Niall Murray and Juno McEnroe, Irish Examiner, 15 May]

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Education (Miscellaneous Provisions) Act 2015

Posted in Legal issues on May 12th, 2015 by steve

IrelandText of the new act is now available here – it was signed into law one week ago (5 May), though it is not yet in force. The main effect is that a qualifying education provider may apply to the Minister for Education for an authorisation to describe itself as a “university” for certain limited purposes outside the state. In fact, there is only one education provider that currently qualifies, and that is the RCSI. Conditions may be attached to an authorisation, and there is provision for review and withdrawal of the authorisation.

With the new act in force, the following are the only Irish educational establishments or facilities permitted to describe themselves as a “university”:

  1. The seven universities,
  2. An educational institution or facility established and described as a “university” before 30 July 1996 (which presumably includes the National University of Ireland, the Pontifical University St Patrick’s College Maynooth, and the Open University),
  3. An education provider acting within the terms of an authorisation granted under the Act, and so describing itself only outside Ireland, and
  4. Anyone who has the Minister’s approval so to describe themselves.

Presumably the new legislation on technological universities will also permit those institutions to refer to themselves as universities.

There are some additional provisions in the new act, one of which entitles the Minister to withhold data which might be used to build up a competitive league table relating to schools.

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Third Level Staff: NUIG and Gender Equality

Posted in Governance and administration, Legal issues on April 15th, 2015 by steve

IrelandLorraine Higgins (Labour): I am raising the approach of the National University of Ireland Galway, NUIG, to gender among its academic ranks. The Minister of State may be aware that in December 2014, an NUIG academic, Dr Micheline Sheehy Skeffington, won an Equality Tribunal case against the university for discrimination on the basis of gender in the 2009 round of promotions to senior lecturer. Dr Sheehy Skeffington is the first female academic to have achieved this outcome in Ireland …” (more)

[Seanad debates, 15 April]

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NUIG chair turns down equality meeting request

Posted in Governance and administration on April 13th, 2015 by steve

Ireland“The chair of the Governing Body of NUI Galway has declined to meet elected Oireachtas members over their concerns about the ongoing gender equality issues at the university. Justice Catherine McGuinness, a former senator and retired Supreme Court judge, says her role as chair of the Governing Body is ‘very limited’ …” (more)

[Dara Bradley, Connacht Tribune, 13 April]

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Bill will enable political ‘cronies’ to spy on universities, claim presidents

Posted in Governance and administration, Legal issues on February 16th, 2015 by steve

Ireland“The presidents of the seven universities have written to the Government expressing dismay at plans to introduce legislation which they claim will allow Ministers to appoint ‘cronies’ to spy on their operations …” (more)

[Joe Humphreys, Irish Times, 16 February]

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Universities (Development and Innovation) (Amendment) Bill 2015 – IV – Staff, Pensions, Innovation and IP

Posted in Governance and administration, Legal issues on February 6th, 2015 by steve

Ireland“This is the fourth and final post in a series on Senator Seán Barrett’s Private Members’ Bill, the Universities (Development and Innovation) (Amendment) Bill 2015, which was discussed last week in the Seanad (earlier posts are here, here and here) …” (more)

[Eoin O’Dell, Cearta, 6 February]

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Universities (Development and Innovation) (Amendment) Bill 2015 – III – Funding & remuneration

Posted in Governance and administration, Legal issues on February 5th, 2015 by steve

Ireland“This is the third in a series of posts on Senator Seán Barrett‘s Private Members’ Bill, the Universities (Development and Innovation) (Amendment) Bill 2015, which was discussed last week in the Seanad …” (more)

[Eoin O’Dell, Cearta, 5 February]

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Universities (Development and Innovation) (Amendment) Bill 2015 – II – Tenure

Posted in Governance and administration, Legal issues on February 4th, 2015 by steve

Ireland“This is the second in a series of posts on Senator Seán Barrett‘s Private Members’ Bill, the Universities (Development and Innovation) (Amendment) Bill 2015, which was discussed last week in the Seanad …” (more)

[Eoin O’Dell, Cearta, 4 February]

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New legislation planned for third level

Posted in Governance and administration, Legal issues on January 18th, 2015 by steve

SECTION A – Bills expected to be published during the Spring/Summer Session 2015

  • Technological Universities Bill to provide for the establishment of Technological Universities and the amendment of IoT/DIT, HEA and other Acts
  • Universities (Amendment) Bill to give the Minister the power to require universities to comply with government guidelines on remuneration, allowances, pensions and staffing numbers in the University sector

SECTION C – Bills in respect of which heads have yet to be approved by Government – publication expected 2015

  • Higher Education Bill to modernise the legislative framework underpinning the governance and functions of the Higher Education Authority and the governance structures of the universities
  • Public Sector Standards Bill to reform the existing legislative framework in relation to ethics regulation for those in public office
  • Seanad Electoral (University Members) (Amendment) Bill to implement the 1979 amendment to the Constitution on the Seanad university franchise

SECTION D – Bills currently before the Dáil and Seanad

  • Education (Miscellaneous Provisions) Bill 2014 [Seanad] – on Dáil Order Paper (Second Stage) –  to enable an education provider to describe itself in certain circumstances as a university; to amend the Universities Act 1997; to amend the Education Act 1998; to amend the Student Support Act 2011 and to provide for related matters

 

[Extract from: Government Legislation Programme Spring/Summer Session 2015, 14 January]

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Appropriate spending a high priority for Education Minister, she says

Posted in Governance and administration on September 30th, 2014 by steve

Ireland“Appropriate spending in publicly funded higher education institutions is a high priority for Education Minister Jan O’Sullivan despite claims from college presidents that universities and institutes of technology are ‘over-regulated’, the Minister has said …” (more)

[Leanna Byrne, Business Post, 30 September]

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Education (Miscellaneous Provisions) Bill 2014

Posted in Legal issues on June 26th, 2014 by steve

IrelandBy the Universities Act, 1997, s 52, no-one can call themselves a “university” in relation to education unless they actually are one (to put it crudely). This bill introduces an exception: certain education providers within the State may apply to the Minister for an authorisation, and if authorisation is granted they may call themselves a “university” outside the state, for certain specified purposes – without actually being one (more, download).

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Board approves pay cap breach

Posted in Governance and administration, Legal issues on June 14th, 2014 by steve

“The Board of Trinity College has approved a salary offer above the standard scale for the incoming Professor of Business Studies, Trinity News has learnt. The offer is understood to be significantly above the approved annual rate for professors under the current salary scales for College employees …” (more)

[Catherine Healy, Trinity News, 13 June]

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The Higher Education and Research Bill 2014 – 5. Staff: tenure

Posted in Governance and administration, Legal issues on April 8th, 2014 by steve

Academic tenure is probably the most controversial area addressed by the Barrett bill. Unfortunately the agenda is far from clear. Senator Barrett writes of addressing “the problems created by the Cahill v. Dublin City University case [2009] IESC 80” (which are …?). He adds that “[m]uch of what is understood as tenure is actually the norms and practices of the public service being applied to higher education and research” – a controversial statement, to put it mildly. As it is, we have proposals in the draft bill, but little by way of justification or explanation. There seem to be four main issues:

Fixed-term contracts. This is flagged up as an issue by Senator John Crown, who graphically referred to researchers “living from one six-month period to the next, wondering when they will get another research grant or whether, at the whim of people whose vanity research project is satisfied by their activities, they have a job to go to”. It is not clear what, if anything, the Barrett bill will do for such people; I rather suspect that cl 24(8)(e)(ii) (“discharge of the contract by operation of law”) is meant to ensure that it does nothing at all. If this is not a problem that the bill means to address, this should be made clearer.

Progression. Cl 24(8)(c) proposes a probationary period of 24 months for all academics (“teachers or investigators”), after which they acquire tenure. Senator Kathryn Reilly has already suggested that this is on the long side. I suspect that university management will regard it as too short, as a proper demonstration of fitness will probably involve quite a bit of paperwork, and the bill requires 6 months’ notice of a refusal to grant tenure (cl 24(8)(d)(ii)). And how is this framework to deal with internal promotions? – If a lecturer with tenure is promoted to a senior lectureship, does s/he lose tenure for 24 months? On all of these issues, this seems to be an area where higher education institutions will already have settled procedures, almost certainly negotiated with union representatives, and so a careful case for outside intervention will need to be made.

Removal for cause. The bill gives various procedural rights to staff members whose removal for cause is being considered, including (“if possible”) a right to be heard both by the academic council and by the governing authority. The right to academic freedom (cl 13) would no doubt be of relevance in many such cases. Where what is alleged is incompetence, there should be evidence from teachers and scholars. Dismissal should carry a right to a year’s pay unless the case involves “moral turpitude” (cl 24(8)(d)(iv)). But what is this all for? It would help considerably if Senator Barrett could state clearly what he sees as the problem here: the existing defence of academic freedom, and procedural rights on dismissal, are already substantial. What is he trying to achieve?

Removal for redundancy. Current university law already guarantees tenure (Universities Act 1997 s 25(6)), but does this preclude redundancy? The only judge ever to attempt an answer (Clarke J in Cahill v. Dublin City University [2007] IEHC 20 para 6.3) thought not, though a carefully-written institutional statute would be needed. But the matter remains unclear. The Barrett bill guarantees tenure in general, but makes an exception for “extraordinary circumstances because of financial exigencies” (cl 24(8)(c)), which exigencies must be “demonstrably bona fide” (cl 24(8)(e)). What does this mean? Experience suggests that there are three main situations where an institution is likely to seek redundancies:

  1. where a particular income stream (grant, programme income), which pays for specific posts, dries up, and it is decided to terminate the posts;
  2. where a particular department or unit persistently makes losses, and so there is a decision to close it or scale it down;
  3. where the institution as a whole is in deficit, and it is decided to reduce total staffing bring the institution back within budget.

Case 1 is already a familiar part of the higher education scene; case 2 would change institutional politics profoundly, as “black hole” departments would suddenly find their position infinitely more precarious than hitherto; and case 3 will become the new nightmare for all staff who cannot produce instant and reliable proof of their indispensability.

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The Higher Education and Research Bill 2014 – 4. Individual institutions: Governance

Posted in Governance and administration, Legal issues on April 6th, 2014 by steve

The governance provisions of the bill are pretty dense, and their purpose is not altogether clear, as in many respects they simply restate the existing position – here as elsewhere, the bill rides two horses, seeking to restate the law and to reform it, and ending up not quite achieving either. However, there are a number of distinct proposals for change here:

Governing authority – chair. The bill introduces, for all higher education institutions, the same rule as is currently in force for universities, namely that the governing authority decides for itself whether its chair will be the chief officer or an independent chair (cl 16). I would imagine (though it is not awfully clear) that this choice is meant to be made afresh with each new governing authority – this needs to be clarified.

Governing authority – tenure. Tenure of all governing authority members is now stated to be 48 months, “one-time continuously renewable” (cl 15(4)). This is a considerable reduction from the current position, and it might be questioned whether this is long enough. (Senator Averil Power has already questioned whether this is long enough for the chair.) Is a one-size-fits-all rule really needed? A general reduction in terms is certainly possible without specifying in legislation the precise number of months that are to be served.

Chief officer – tenure. “The chief officer shall have tenure of 48 months, renewable once” (cl 23(3)). Again, a considerable reduction, and without much explanation. It is not enough to parrot that industry CEOs can usually expect such short terms – higher education institutions are a good deal slower to move than commercial firms, and correspondingly greater harm can be done by heads desperate to make their mark over a short period. More explanation needed!

Loss of institutional control. By cl 36(8), an institution that exceeds its budget for more than 24 months “will be placed under the direct financial control of the Higher Education and Research Grants Committee”. Given that most costs of Irish higher education institutions are staffing costs, there is a pretty clear threat here, especially given what is said later on redundancy.

Each of these proposed changes has its merits, but the overwhelming conclusion is that the true scale of the problem is not being taken seriously. Each institution is unique, and the balance of interests within it needs detailed attention – which is why the Universities Act 1997 s 16 (“Composition of governing authority”) ended up making separate provision for each of the institutions it covered. Broad aims such as reducing term limits need not be carried out in such a prescriptive way: local flexibility must be part of the mix.

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The Higher Education and Research Bill 2014 – 3. Individual institutions: Objectives and functions

Posted in Governance and administration, Legal issues on April 6th, 2014 by steve

What are third level institutions for? This question has excited debate in many context across the centuries. When the question is being asked for legal reasons, and so with an eye to asking which pies those at third level can stick their fingers into and which they cannot, a very broad answer seems to suit everyone best. The definition in the Barrett bill (cl 11) is pretty broad: here are some samples from what is said to be included in the objects of third level:

  • to advance knowledge through teaching, scholarly research and scientific investigation (cl 11(a))
  • to promote learning in its student body and in society generally (cl 11(b))
  • to foster a capacity for independent critical thinking amongst its students (cl 11(d))
  • to promote the highest standards in, and quality of, teaching and research (cl 11(h))
  • to promote gender balance and equality of opportunity among students and employees of the higher education and research institution (cl 11(k))

Two points about this, one general, the other specific.

The general point is that while there is an element of vacuity in general statements of this kind – not all of the problems implied by these provisions are solvable, not all of them are exclusively for third level to solve, and the list is not stated to be definitive or to exclude other possible objects – nonetheless such statements are desirable, because the alternative would presumably be a much more restricted list. Political pressure to achieve particular limited goals is unavoidable; there is no need to add legal ones as well. So in this case, maximum verbiage – a calculated rhetoric of reaching far beyond our grasp – is a badge of autonomy.

The second point is more specific. Some will find the wording of cl 10 familiar, particularly to those who have read Universities Act 1997 s 12: the two are practically identical. In short, Barrett has taken what is currently the authoritative statement of objectives of universities, and proposes to enact that these are the objectives of all third level institutions. There is of course nothing wrong with plagiarism in this context – if a particular form of words does the job, of course it is legitimate to copy it. But there is a strategic point: cl 10 as it stands is a declaration that all third level institutions have the same basic objects, that any apparent differences are merely ones of emphasis. So the same bill that introduces a distinction between Category I institutions (universities), Category II institutions (ITs) and category III institutions (technological universities), also quietly undermines it by suggesting that their basic objects are pretty much the same.

This is heady stuff, and (it must be emphasised) quite different from what current legislation says, or the government seems to be proposing to say. There is no grand statement of objects in the legislation on ITs, beyond that each should “provide vocational and technical education and training for the economic, technological, scientific, commercial, industrial, social and cultural development of the State with particular reference to the region served by the college” (Regional Technical Colleges Act 1992, s 5(1)). The draft heads of the Technological Universities Bill is rather more expansive (head 50) but falls way short of the lofty generality of the Barrett proposal. If all third level institutions have the same objects, the logic of regulation suggests that they should be subject to similar rules and should have similar entitlements to resources. How much similarity do we want?

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The Higher Education and Research Bill 2014 – 2. The third level sector and government

Posted in Governance and administration, Legal issues on April 5th, 2014 by steve

Someone looking for a clear statement of what the Irish third level sector is, and a description of its relation to government, will not find it in the statute book. The HEA Act 1971 gives a few hints, including (in the amended s 1) a definition of “institution of higher education”, but this may be starting in the wrong place; the HEA was never meant to govern the sector, but rather to act as a buffer between the various government departments and the various third-level institutions.

The Barrett bill seeks to recognise and define the sector more thoroughly. By cl 3, the sector will consist of Category I institutions (universities), Category II institutions (ITs) and category III institutions (technological universities). There will also be a category of specialised institutions (such as the RIA), over which the HEA will have “a special regulatory and advisory role” (cl 5). The “aim, objective and functions” of the sector will for the first time be expressly spelled out (cl 10), with the sector’s mission stated as “to promote free research and academic and artistic education, to provide higher education based on research, and to educate students to serve their country and humanity”.

As to the sector’s relations with government, two significant changes are envisaged:

  • A new body, the Higher Education and Research Grants Committee, will inherit from the HEA “[a]ll powers related to the resource allocation process for higher education and research” (cl 4). In other words, the HEA will cede its money powers to this new committee. The committee’s membership provision is complicated; highlights are that, of the 12 members, half are to be appointed by the DES and half by PER; 4 must be “active lecturing and research staff at Universities” when appointed; the others will be selected on the basis of other strengths. (Is “Universities” really what was meant? What will the ITs make of that?).
  • Government powers to restructure the sector are re-stated and to a certain extent enhanced. These are a power over mergers (cl 7, mirroring Universities Act 1997 s 8); a power to recognise new institutions (cls 8 and 21-22, mirroring Universities Act 1997 ss 9 and 23 ); and a power to authorise changes of institutional name (cl 9, mirroring Universities Act 1997 s 10). The provision on recognition of technological universities (cl 42) is surprisingly specific, even down to specifying the chair of the expert commission to consider each application (the Chancellor of Oxford – Chris Patten? really?) and the 12 foreign universities that are to contribute members (The choice of institutions might not satisfy everyone).

Trying to define a coherent third-level sector, and to say definitively what it is for, is a dangerous strategy. If our leaders promise government that the sector is x, we will all be in the wrong if is turns out to be not-x. Promise government that the sector will benefit Ireland in a particular way, and we will find itself audited on that precise point and punished when considered to fall short. Perhaps the idea that third level is for anything in particular is a snare and a delusion. Senator Fidelma Healy Eames hit on something when she commented:

What is the rationale for placing all universities, institutes of technology and the new technological universities under one single regulatory structure? There is widespread suspicion that such efforts constitute the homogenisation of third level. Moreover, without an assessment of existing models one runs the risk of undermining diversity in the third level sector. That diversity inspires competition and innovation. It is not good if we are all the same – diversity is critical.

Senator Barrett has quietly acknowledged this, by noting the dangers of a “purely instrumentalist approach” which implies that the role of universities is solely defined by the needs of others, and by seeking to build institutional autonomy and freedom into the very definition of the third sector (see especially cl 10(c) and (f), and cl 13). How much of this will survive the ongoing legislative process remains to be seen.

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The Higher Education and Research Bill 2014 – 1. Introduction

Posted in Governance and administration, Legal issues on April 4th, 2014 by steve

Current legislation on higher education in Ireland is a mess. The Higher Education Authority Act 1971 is over 40 years old, and despite being amended several times over is well past its sell-by date. The Universities Act 1997 is not in quite such dire shape (imho), but certainly needs revision. The ITs are still mostly governed by the Regional Technical Colleges Act 1992, the Institutes of Technology Act 2006 and a mix of amending Acts. The contemplated technological universities, which will be neither ITs nor universities, will require new legislation all of their own; their draft heads of legislation suggest that it will be lengthy. And all this is before we get on to individual pieces of legislation for individual institutions, of which there are a number.

Against this background, Senator Barrett’s bill has two stated sets of objectives.

The first set of objectives is to modernise the legislation, in various specific respects. Senator Barrett himself summarises the bill’s goals as follows:

  1. Create a more modern approach to public expenditure management for funding higher education.
  2. Place all universities, institutes of technology and the new technological universities under one single regulatory structure.
  3. Address the problems created by the Cahill v. Dublin City University case [2009] IESC 80 with respect to academic tenure.
  4. Create a clearer definition of academic tenure and academic freedom.

How these objectives are reflected in the legislation, and to what extent these are the goals we should be pursuing, will be discussed throughout these blogposts.

The second stated set of objectives is to consolidate and simplify the legislation. This is more problematic, as at first glance Senator Barrett’s draft bill does nothing of the sort. It does not abolish much previous legislation, and certainly would not avoid continued reference to any of the Acts mentioned above. Certain provisions of the bill are said to “supersede” the Universities Act 1997 and the Institutes of Technology Act 2006 (cl 3(5)), but those Acts themselves will remain. The abolition provisions (cl 3(2) and (3)) would sweep away a few obsolete statutes, but by-and-large the bill would leave the law on third level a good deal more complicated than it finds it. Anyone inclined to support the bill on the ground that it would simplify the law should therefore be very careful, that they are not being sold a false bill of goods. However, all may not be as it seems, for reasons which will soon appear. The bill cannot fairly be judged on its own, but rather as part of an ongoing process, of which it may turn out to be an important part.

Proposed by Senator Barrett and recently discussed in the Seanad, it is a private members’ bill. It is being mooted at a time when the government is contemplating both a Technological Universities Bill (to introduce a new type of third-level institution) and a Higher Education Governance Bill. In that context, Senator Barrett’s bill is viewed as a useful contribution to the debate on university reform – which may be why Jim D’Arcy (FG Seanad spokesperson on Education) has now stated that the bill will be supported to committee stage. So while it is very unlikely that this bill will reach the statute book in its current form, and it may not get there at all, nonetheless it is for now the public focus of university reform. For that reason alone it deserves close attention.

In this series of blogposts, I will review the main provisions of the Barrett bill, under the following headings:

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