Committee Reports::Report No. 03 - Statutory Instruments::29 March, 1973::Appendix

I am directed by the Select Committee on Statutory Instruments to say that, arising out of its consideration of statutes made by the National University of Ireland and its constituent colleges under the Irish Universities Act, 1808, it notes the following provisions in Section 5 of the Act:

(3) The governing body of a university or constituent college to which the statute relates, or any other person, corporation, or body directly affected by the statute, may, within three months from the notification thereof in the Dublin Gazette, petition the Lord Lieutenant in Council to disallow the whole or any part thereof.

(4) The Lord Lieutenant in Council may refer any such petition to the Irish Universities Committee with a direction that the Committee hear the petitioner personally or by counsel and report specially to the Lord Lieutenant in Council on the matter of the petition.

(5) If the Committee report in favour of the disallowance of the statute or any part thereof, the Lord Lieutenant may, by Order in Council, disallow the whole or part thereof accordingly, but any such disallowance shall be without prejudice to the making of a new statute.”

The Committee also notes the provisions relating to the Irish Universities Committee in Section 18 of the Act.

To assist it in its deliberations the Committee would welcome clarification as to whether the provisions outlined in the preceding extract for the hearing of petitions by the Irish Universities Committee apply at the present time. I am, accordingly, to request you to let the Committee have a memorandum on this point as soon as possible.

In reply to your letter of July 13th I wish to state that, without taking legal advice on the matter, it would appear to me that this is a matter for Government machinery rather than for the University.

The Adaptation of Enactments Act, 1922, Section 10, would appear to cover this case It reads: “Whenever it is provided in any British Statute that any Act or thing shall or may be made or done by order in Council or by the King (or Queen) in Council, or by Proclamation of the King (or Queen) or of the King (or Queen) in Council then every such Act or thing may be made or done in Saorstát Éireann by an order of the Governor General of the Irish Free State upon the advice of the Executive Council of the Irish Free State”.

The “Irish Universities Committee” mentioned in the Irish Universities Act 1908 is a “Vice-Regal” Committee since it reported to the Lord Lieutenant in Council.

Yours faithfully,

JOHN BOURKE,

Registrar.

I am directed by the Select Committee on Statutory Instruments to say that, arising from its examination of Statutes made by the National University of Ireland and its constituent colleges under the Irish Universities Act, 1908, it notes the provisions of Section 5 of the Act relating to the making of a petition to the Lord Lieutenant in Council to disallow a statute and for the initial hearing of such petition by the “Irish Universities Committee”.

In order to satisfy itself on the question of a right of appeal against statutes made by the University and its constituent colleges the Select Committee sought clarification from the Registrar, National University of Ireland as to whether the provisions contained in Section 5 of the Irish Universities Act, 1908 regarding the hearing of petitions by the Irish Universities Committee apply at the present time. The Registrar, however, is not aware of the existence of an Irish Universities Committee and believes that this is a matter for Government machinery. Accordingly, the Select Committee has directed me to ask you to indicate for its information what the present position is in respect of the right of appeal against statutes made by the National University of Ireland and its constituent colleges as provided by Section 5 of the Irish Universities Act, 1908.

I am to acknowledge the receipt of your minute of the 14th instant relative to the right of appeal against statutes made by the National University of Ireland and its constituent colleges and to say that the matter is receiving attention.

I am directed by the Select Committee on Statutory Instruments to refer to my letter of 14 Meán Fómhair, 1972 regarding the question of a right of appeal against statutes made by the National University of Ireland and its constituent colleges and to say that the Committee would be glad to have a reply at an early date. In this connection I am to say that the Committee proposes to make a report to Seanad Éireann shortly on the matter of university statutes and it wishes to complete its consideration of outstanding correspondence as soon as possible.

I am to acknowledge the receipt of your further minute of the 17th instant relative to the right of appeal against statutes made by the National University of Ireland and its constituent colleges and to say that a reply in the matter will issue to you shortly.

I am to refer to your minute dated the 17th November, 1972, relative to the right of appeal against statutes made by the National University of Ireland and its constituent colleges and to enclose herewith for the information of the Select Committee two copies of a memorandum dated January, 1973, which has been prepared by the Department of Education in the matter.

Should you have any further enquiries you may wish to contact the Department of Education direct.

Memorandum prepared by Department of Education.

“(1) When any statute has been made under this Act, a notice of its having been made and of the place where copies can be obtained shall be published in the Dublin Gazette, and the statute shall be laid as soon as may be before both Houses of Parliament.

(2) If either House of Parliament within forty days (exclusive of any period of prorogation) after a statute has been laid before it presents an address praying His Majesty to disallow the statute or any part thereof, no further proceedings shall be taken on the statute or on the part thereof to which the address relates, but this provision shall be without prejudice to the making of a new statute.

(4) The Lord Lieutenant in Council may refer any such petition to the Irish Universities Committee, with a direction that the committee hear the petitioner personally or by counsel, and report specially to the Lord Lieutenant in Council on the matter of the petition.

“There shall be a committee of the Privy Council in Ireland styled the Irish Universities Committee. The committee shall consist of such number of members of the Privy Council in Ireland, not being less than five, as the Lord Lieutenant may think fit to appoint, two at least being persons who are or have been judges of the supreme court”.

3. In October, 1942, the Parliamentary Draftsman, at the instance of the then Taoiseach prepared the draft of a Bill which was revised at the request of the Taoiseach on 2 April, 1943. A copy of the revised Bill entitled

“An Act to make provision for the annulment in proper cases of statutes made by the Senate of the National University of Ireland or by the governing body of a constituent college of that University and for that purpose to amend the Irish Universities Act, 1908”.

is enclosed. It will be observed that the Bill provided in Section 2 for the setting up by the Government of National University Committees “whenever and so often as occasion shall require”, and that Section 4 of the Bill dealt with the procedure to be adopted in the event of a decision by the Government to refer to a National University Committee a petition presented to the Government for the annulment of a statute made under the 1908 Act or of any specified portion thereof. Owing to the exigencies of the time, however, it was decided by the Taoiseach that the Bill should not be proceeded with.

4. On 8 July, 1959, Professor Séamus Henchy, then Professor of Roman Law, Jurisprudence and Legal History in University College, Dublin, who had earlier petitioned the Government in its capacity as the Visitor of the National University of Ireland to declare certain parts of certain statutes of the University to be “ultra vires, invalid and null and void”, addressed a letter to the Taoiseach in the following terms:—

“Section 5 of the Irish Universities Act, 1908, entitles the governing body of a university or constituent college to which the Act relates, or any other person, corporation, or body directly affected by a statute made under the Act to petition the disallowance in whole or in part of such a statute.

The petition is to be referred to the Irish Universities Committee which is defined in Section 18 of the Act as a Committee of the Privy Council in Ireland. Since the Privy Council in Ireland is non-existent, and since Section 18 has not been adapted, there would appear to be no way in which a petition under Section 5 could now be heard.

In view of the fact that a statutory right is thereby denied and that injustice may result, I should be glad to know if the Government, in the exercise of their powers under the Adaptation of Enactments Act, 1922, would make the appropriate adaptations so that such a petition could be heard”.

5. The Taoiseach’s Department forwarded copies of Professor Henchy’s letter to the Department of Education with a request that the Minister for Education would examine the representations contained in the letter and, after consultation with the Attorney General, submit a memorandum to the Government on the matter, with recommendations as to the action, if any, that should be taken. In the course of its minute to the Department of Education, the Taoiseach’s Department quoted references by the Law Officers (a) to the Bill prepared in 1942/43 (see paragraph 3 above) and (b) to the fact that an Adaptation Order (S.R. & O. No. 476 of 1942) had been made in respect of Section 5 (2) of the Irish Universities Act, 1908. The Law Officers submitted, however, that adaptation alone would be of no avail in the case of subsections (3), (4) and (5) of Section 5 of the Act, and expressed the view that legislation to replace Sections 5 and 18 of the Act should be considered.

6. The whole matter was then examined in the Department of Education in all its aspects, and on 14 March, 1960, the Department sent a minute to the Taoiseach’s Department indicating that the draft Bill which had been prepared in 1942/43 (see paragraph 3 above) would appear to be suitable, subject to certain suggested amendments. Reference was made, however, to the approval which had a short time previously been given by the Government for the appointment by the Minister for Education of a Commission on various problems which had arisen in connection with university education since the passing of the Irish Universities Act, 1908, and it was stated that the Minister for Education felt that the question of a National University Committee would be among the matters upon which it would be fitting that the Commission should deliberate and recommend. The Minister therefore suggested that the question of introducing amending legislation should await the Report of the proposed Commission, and the Taoiseach concurred in this proposal.

7. The Commission on Higher Education, 1960-1967, did not deal specifically in its Report with the question which is the essential subject of this memorandum, but it did propose a juridical basis for the new structure of higher education which it recommended. That basis was briefly described as follows in the published Summary of the Commission’s Report (Prl. 9326 of 1967):

“An act or acts of the Oireachtas would be the most appropriate way of establishing the new universities and other institutions. The constitution of T.C.D. would be restated by act of the Oireachtas.

Legislation should be in two main parts: (1) a general act declaring the fundamental rights of the institutions of higher education and the basic freedoms of learning and scholarship; and (2) an act or acts laying down permanent provisions for the several institutions, and setting forth in schedules other provisions which, it was contemplated, would from time to time require to be changed, and could be changed in accordance with procedure contained in the act. Consultation with the institutions of higher education, the Council of Irish Universities and the Commission for Higher Education should be an essential part of this procedure.

A considerable legislative programme arises out of recommendations in the report. The Commission for Higher Education should first be established, and among its first tasks, it should assist in framing proposals for the necessary legislation”.

8. The Council of Irish Universities and the Commission for Higher Education were new bodies recommended by the Commission. It is not necessary for purposes of this memorandum to set out in detail the functions envisaged for both bodies except to say that the functions which the Commission envisaged for the Commission for Higher Education are largely the functions which have been assigned to the Higher Education Authority. Section 5 of the Higher Education Authority Act, 1971, provides that:

“An tÚdarás shall advise the Minister (for Education) on the need or otherwise for the establishment of new institutions of higher education, on the nature and form of those institutions and on the legislative measures required in relation to their establishment or in relation to any existing institution of higher education”.

9. The advice of the Authority on legislation will be sought as soon as decisions have been taken by the Government on proposals for the future structure of university and higher education generally which the Minister for Education will submit to the Government as soon as possible in the context of the Higher Education Authority’s recent Report on University Reorganisation.

10. It has been considered advisable to set out the whole position in this detail for the information of the Select Committee of Seanad Éireann on Statutory Instruments although the situation remains that the only legislative provision which at present exists for securing the disallowance in whole or in part of a statute of the National University of Ireland or of any of its Constituent Colleges is that contained in Section 5 (2), as adapted, of the Irish Universities Act, 1908.

11. Reference may, however, be made to the Visitorial powers which reside in the Government in relation to the University and its Constituent Colleges. Clause IV of the Charter of the National University says:

“We reserve to Ourselves, Our Heirs and Successors, to be the Visitor and Visitors of the University, acting through such Board of Visitors as we may from time to time appoint having regard to the nature of the case”.

and the Charters of each of the Constituent Colleges state that: “The Visitor of the University shall be the Visitor of the College”. It is provided in Chapter II of Statute LXXXVI of the National University dated 3 January, 1951, that: “The functions of Visitor of the University are exercisable by or on the authority of the Government”.

12. A petition made to the Government on 26 November, 1958, by Professor Séamus Henchy, then Professor of Roman Law, Jurisprudence and Legal History in U.C.D., in relation to certain parts of certain statutes of the National University is mentioned in paragraph 4 above. The petition was “addressed to the Government as the persons now exercising the functions of the Visitor of the University (see Clause IV of the University Charter of 1908, as modified and adapted by the National University of Ireland (Adaptation of Charters) Order, 1935 (S.R.O. 1935, No. 33), and Article 49 of the Constitution of Ireland) and it seeks the appointment by the Government of a Board of Visitors to adjudicate on the matters referred to in the Petition”.

13. The Government appointed a Judge of the Supreme Court, a Judge of the High Court and a Judge of the Circuit to be a Board of Visitors “To consider the petition dated the 26th day of November, 1958, of Professor James A. Henchy and to make such determination and declarations in respect of the matters therein raised as may be appropriate and to report to the Government thereon”. The petitioner had sought to establish that the addition of certain subjects to those already included in the University’s Faculty of Law, which addition involved the establishment as members of the Faculty of the Professors and Lecturers in the added subjects, was invalid. The Board of Visitors was of the opinion that the statutes making the addition referred to by the petitioner were not invalid, and that, accordingly, the petition should be refused. The Government accepted the Report of the Board.

14. On 29 May, 1959, Mr. John Kenny, then an Assistant in the Law Faculty of University College, Dublin, challenged the authority of the Governing Body of the College to make appointments to posts as College Professor, College Lecturer and Assistant Lecturer in the College, maintaining that the sole power of appointing Professors and Lecturers of the University and of the College was vested in the Senate of the University. He petitioned the Government “to cause it to be declared that the College and the Governing Body have no power, right or authority to appoint Professors, Lecturers, College Professors, College Lecturers or Assistant Lecturers, that such appointments are ultra vires the College and the Governing Body, are not authorised by and are prohibited by the Charter and Statutes of the College, and are unauthorised and contrary to law”.

15. The Government appointed two Judges of the High Court and a Judge of the Circuit Court to be a Board of Visitors with terms of reference corresponding to those specified in respect of the previous petition (see paragraph 13 above). The Board found in favour of the petitioner and in consequence the University College Dublin Act, 1960 (No. 16 of 1960) was enacted to validate all appointments as “College Lecturer” and “Assistant Lecturer” made by U.C.D. prior to the passing of the Act, and to enable further similar appointments to be made during a limited period provided that no such appointment should be made for a term exceeding one year.

16. These were the only two instances since the foundation of the State in which the Government exercised its Visitorial functions in relation to the National University of Ireland or any of its Constituent Colleges.

Draft of Bill referred to in paragraph 3 of Department of Education memorandum.

An Act to make provision for the annulment in proper cases of statutes made by the Senate of the National University of Ireland or by the governing body of a constituent college of that University and for that purpose to amend the Irish Universities Act, 1908.

1. In this Act—

the expression “the Act of 1908” means the Irish Universities Act, 1908,

the expression “the University” means the National University of Ireland,

the expression “constituent college” means a constituent college of the University,

the expression “governing body” means, in relation to the University, the Senate of the University,

references to statutes made under the Act of 1908 shall be construed as referring to statutes made under that Act by the governing body of the University or of a constituent college.

2. (1) Whenever and so often as occasion shall require a committee (to be known and in this Act referred to as a National University Committee) shall be set up by the Government for the purposes of this Act.

(2) Every National University Committee shall consist of such persons, not being less than five in number, as the President, acting on the advice of the Government, shall appoint.

(3) At least two of the members of every National University Committee shall be persons who are or have been judges of the Supreme Court or of the High Court and have been nominated by the Chief Justice for appointment as members of such Committee.

(4) The Government may by order make rules regulating the procedure of National University Committees generally or of any particular such Committee.

(5) Unless and until rules are made by the Government under the next preceding subsection of this section, and subject to such rules when made, every National University Committee may regulate its own procedure.

3. (1) When a statute is made under the Act of 1908, the governing body by which such statute is made shall, as soon as may be after the making of such statute—

(a) publish in the Iris Oifigiúil a notice of the making of such statute and of the place at which copies of such statute may be obtained, and

(2) If either House of the Oireachtas shall, within the next subsequent twenty-one days on which such House sits after a statute made under the Act of 1908 is laid before it, pass a resolution annulling such statute or a portion thereof, such statute or such portion thereof (as the case may be) shall be annulled accordingly, but without prejudice to the validity of anything previously done under such statute or to the making of a new statute under the Act of 1908 by the same governing body.

4. (1) The governing body of the University or of a constituent college (not being the governing body by whom the statute was made) or any other person affected by a statute made under the Act of 1908 may, not later than three months after the publication in the Iris Oifigiúil of notice of the making of such statute, present a petition to the Government praying for the annulment of such statute or of any specified portion thereof.

(2) The Government may, if they so think proper, refer any petition presented to them under this section to a National University Committee.

(3) Whenever a petition is referred under this section by the Government to a National University Committee, the following provisions shall apply and have effect, that is to say:—

(a) such Committee shall consider such petition and shall hear the petitioner (if he so desires) and the governing body by whom the statute to which such petition relates was made (if they so desire) and may, if it thinks fit, hear any other person who desires to be heard and appears to it to be affected by such statute;

(b) every person heard by such Committee may be so heard in person or by solicitor or counsel;

(c) such Committee shall report to the Government on such petition and in particular as to whether the statute to which such petition relates should or should not be annulled in whole or in part.

(4) If a National University Committee reports to the Government under this section that a statute or a part of a statute should be annulled, the Government, if they so think proper, may by order annul such statute or such part thereof, as the case may be.

(5) Whenever the Government annuls under this section a statute or a part of a statute, such statute or such part thereof (as the case may be) shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder or to the making of a new statute by the governing body by whom such statute was made.

5. (1) The costs of all parties heard by a National University Committee on a petition referred to it by the Government shall be in the discretion of that Committee, and the said Committee may order that the costs of any such party shall be paid in whole or in part by the petitioner (whether he is or is not heard by the Committee) or by the governing body by whom the relevant statute was made (whether they are or are not so heard) or by any other person who is heard by the Committee.

(2) All costs of any person which are ordered by a National University Committee to be paid by any other person shall be taxable by a Taxing-Master of the High Court on a requisition signed by either such person and shall, when so taxed, be recoverable in any court of competent jurisdiction as a simple contract debt.

6. The expenses incurred by the Government in the administration of this Act (including expenses in relation to a National University Committee) shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.

(2) The Act of 1908 and this Act may be cited together as the Irish Universities Acts, 1908 and 1942.

APPENDIX I.

Right of Petition.

Memorandum prepared by Department of Education.

Draft of Bill referred to in paragraph 3 of Department of Education memorandum.