Universities behaving badly? Send in the clowns!
Some of the wits on Twitter have had fun with the announcement that Minister Ruairí Quinn plans new legislation to ban unauthorised university expenditure. Surely, they say, if expenditure is unauthorised, it’s already been banned, and no law is needed? Or if there is a law already, and it’s being ignored, why does Ruairí Quinn think that a second law will not equally be ignored? Only in Ireland! Most of this is simply harmless fun at the law’s complexities, pretending not to understand that simply banning bad behaviour is one thing, whereas making the ban stick is quite another. There is however a serious point buried in there. The rationale given for the new proposals doesn’t quite stack up.
While it’s true that the various recent overspends represent a failure by the universities which made them, they also represent a failure by oversight mechanisms to do their job of enforcing financial limits. The HEA is particularly at fault, as was clearly seen in the Oireachtas hearings over university hiring a few years back. Control cannot be exercised over university appointments by saying “Maybe!” every time approval is asked; pretty soon, the university will have to act, and quite possibly will assume that there was a “Yes!”. If later held to account, the university’s chief officer (let’s call him “Hugh”) will say, not unreasonably, that he had to assume something. But the HEA appears to have learned its lesson – as well it might, given the not-so-subtle suggestion (via An Bord Snip Nua) that its continued survival is not a given. Again, while well within recent memory a university might have assumed that strict financial limits were aspirational only, no-one is likely to be making that mistake now. University heads now know that major financial irregularities – and surprisingly small sums can be “major” these days – can result in very unpleasant consequences indeed.
So while the problem was real, it was as much cultural as legal – it was not that enforcement powers were lacking, it was that no-one quite believed that they would be used. And the solution to this was cultural too – removing false impressions about any reluctance to use the law. That has all been done, within existing powers. What, then, is the new legislation for? It is possible to read it as simply a continuation of the cultural assault, a political and legal way of saying to university heads that much as they might think they dislike Ruairí now, they wouldn’t like to see him really angry. On that view, it is the tone of the legislation (or indeed, simply its existence), rather than what it actually says, that matters.
What the draft legislation actually says
But maybe not, and this legislation is being enacted so that it can actually be used. Then its detail begins to matter. What is the detail? The focus is on compliance with a “policy decision made by the Government or the Minister in so far it relates to the remuneration or numbers of public servants employed in that university, or a collective agreement entered into by the Government or the Minister”. The powers now given to the minister are: (1) To make a direction requiring compliance; (2) To send in an investigator to check on compliance and make a report; (3) On receipt of such a report, to make a specific direction to the institution reported on; and (4) If the minister considers that there is non-compliance or “serious deficiencies” in the area, to transfer university functions in that area to someone of the minster’s choosing. This transfer can be for up to 2 years.
This is both wider and narrower than earlier press reports led us to believe. It is narrower in that it has almost nothing to say on most of the irregularities and scandals that have blown up. It seems inapt for dealing with ordinary cases of wasted expenditure (even if they are as large as they seem to have been at WIT). Or again, given the focus on numbers, it seems to have nothing to contribute to questions of whether particular new posts (academic or administrative) are actually well-advised or not. And it avoids questions of legality, thus complicating still further cases where universities say that they were obliged to make certain internal promotions (as has TCD) or that, whether the minister thinks so or not, they have stayed within the terms of Croke Park (as TCD have maintained over certain controversial redundancies). For most of the actual complaints of misconduct that have arisen, there is already a legal mechanism in place to settle the matter, and this new law seems to add little.
But in other significant respects, the proposed legislation is broader than a measure designed simply to uphold the law. Powers to act are given if the minister considers that the law is broken, or that a university has failed to comply with the minister’s policy (from wherever derived, with whatever end in view), or fails to implement a collective agreement (which, very probably, was not legally enforceable). There is even a power to act if the minister thinks there are “serious deficiencies” in the university’s behaviour, even though there is no breach of any known law. So this is not a bill to enforce university compliance with law, and it discourages any resort to a legal tribunal that might say definitely what the university’s responsibilities are. This is a bill to force universities to do what the minister says, even if their own legal responsibilities (or even their residual sanity) tells them to do something different. And university autonomy be blowed.
How will this work from day to day?
But of course no-one ever came into academia so that they can do the bidding of government ministers, and no university ever became great or respected by doing what it was told. Clearly the intent is to make universities think harder before creating new posts or filling old ones. But the result is a dog’s breakfast of provisions, which makes it entirely unclear where responsibility for hiring policy lies. A university may appoint “such and so many persons to be its employees as it thinks appropriate, having regard to” a number of matters (Universities Act, 1997, s.25(1)). One of the things it must “have regard to” is guidelines from the HEA, but that does not mean it must do what the HEA says – the guidelines are explicitly stated to be non-binding, and the government cannot make compliance a condition of the receipt of public money (s.50(2)). Yet under the new legislation, the university must comply with a “policy decision” in respect of numbers (new s.20A(2)), and any ministerial “direction” on the matter (new s.20C(2)). (Presumably the Employment Control Framework is one such policy, even though it did not emanate from the DES, and presumably the minister’s expressed opinion about what it requires are “directions”, even if others have different opinions.) There is no mention of the HEA in that part of the new legislation – the minister need not even tell the HEA what he is up to, let alone consult them in a meaningful way. If this legislation is in place, it is entirely unclear who has responsibility for the size or shape of the universities. Perhaps that is the idea.
It is also quite unclear – and if actual use of the new legislation were in issue, it would matter deeply – how detailed the control can be. Suppose a university proposes to create a new, highly-paid administrative post; the HEA is persuaded that this is necessary and appropriate, but (after the newspapers get hold of it) the minister forms the view that it is extravagant. Can the minister intervene, on the ground that the matter concerns the “remuneration or numbers of public servants employed in that university”? Or could not the university say that that phrase was evidently designed to forbid ministerial intervention in individual employment decisions? Clearly, this could be argued either way. Clearly also, a government that is trying to send signals to university management will not be much bothered by the point.
Role of the investigator
And what if the minister decides to send in an investigator (under new s.20B)? The power to investigate is quite narrow in its scope, being confined to very particular matters. Yet it is also required that the investigator “be afforded every facility and cooperation by the university … including access to all records …”. It seems clear that there will be considerable scope for disagreement as to precisely what such an inspector may or may not look at, between parties who have every reason not to trust one another.
And that is before we consider the role of third parties to the investigation, particularly individual staff members, all of whom will have rights even though the legislation does not mention them. If a university stands up to government to such an extent that it risks an investigation, that will probably be because giving in would be worse – the university management fears opposition, or litigation, or even outright mutiny, from staff inconvenienced by what the government are currently demanding. The practicalities of carrying out an investigation in such a tense situation would be interesting, to say the least.
As an exercise, consider a (laughably unlikely) hypothetical. Suppose the minister suspected that the “extra hour” recently demanded under Croke Park was not, in fact, a reality in our universities, and that paperwork from the universities evidencing implementation could only be regarded as an exercise in imaginative fiction. The investigator makes contact and tries to establish the truth of the matter. Relevant staff members decline to help, insisting that they already work an unreasonable number of hours and feel slighted to have the contrary suggested; the more legally-knowledgeable of them add that there is nothing in their contracts to make them work this extra hour (they are not parties to Croke Park and it isn’t enforceable against them, see Holland v. Athlone IT  IEHC 414), a fact which is nonetheless true despite the management’s having issued new “contract terms” suggesting otherwise. On top of that, the academics are likely to insist that there is nothing in their contracts about assisting government investigators. How far would such an investigator get?
An actual transfer?
The ultimate sanction is a transfer of functions, where the minister concludes that there is a failure to comply with a relevant demand or that there are “serious deficiencies” in the way the university has handled relevant matters. In that situation the minister may transfer the university’s decision-making powers in relevant matters to a person of his choosing. The HEA must be consulted before this step is taken (though, as a political matter, a minister who is contemplating such a step seems unlikely to be capable of being talked out of it by the HEA, who will no doubt be told that they are themselves seriously at fault for allowing matters to reach this stage). Where a university function has been so transferred, “that university shall not, during the period the function stands transferred, perform that function and the performance of that function shall not, during the period, be subject to its direction, control or supervision”. The transfer is for a maximum period of two years, though no doubt a minister who thought a longer period appropriate would have no difficulty in finding new “serious deficiencies” to justify a fresh order at the end of the two years.
But responsibility in that situation is hopelessly confused. The university remains in charge of its own affairs in all respects other than those covered by the transfer, and its senior management can hardly avoid having a view on what is being done by the transferee. Legally, they would be able to hold the transferee precisely to the terms of their powers, and to consider all requests for cooperation or information in that light; whether they do so politically is hard to predict. All in all it seems a hopeless arrangement; it is certainly no way to run a university. But perhaps, again, it was not intended to be.
Sometimes, legislation is passed simply as a signal, with no intention that it will be used, but merely to warn those subject to it. In that sense, the newspaper articles warning of the new bill and its swingeing powers were more important than what they announced – the bill was written as much to trigger those articles as for any other purpose. Let us hope that this bill is of that sort, and that the powers in it will accordingly not have to be used. If it is seriously considered that they might be, a great deal more thought will have to go into them if the result is not to be chaos.
References and further reading
Employment Control Framework for the Higher Education Sector 2011-2014 (as revised, June 2011)
General Scheme of a Universities (Amendment) Bill 2012 (Department of Education and Skills, October 2012)
Irish Universities – Resource Management and Performance (Comptroller and Auditor General, September 2010)
Matters Arising out of Education Audits, Special Report (Comptroller and Auditor General, June 2012)
Public Service Agreement (“Croke Park”) (March 2010)
Many thanks to Conor O’Mahony for useful input