1. Although it had not been the practice of previous Select Committees to examine university statutes, this Committee decided in March 1972 that, in view of its practice of examining instruments made in pursuance of a Statutory requirement by bodies in receipt of public funds, the National University of Ireland and its Constituent Colleges should be asked to submit for examination copies of all statutes made in the period since the date of appointment of the Committee, i.e. 10th December, 1969. The Committee received and examined thirty statutes and decided to report its observations to the Seanad in this Report which concerns itself only with these statutes.
2. In the course of its examination the Select Committee entered into correspondence with the National University of Ireland, its Constituent Colleges, the Department of the Taoiseach and the Department of Education in regard to various aspects of the statutes. This correspondence is reproduced in Appendices I to IV. It will be noted that the Committee suffered considerable delays in obtaining information from the Government Departments concerned. For the purpose of this Report the Committee will deal firstly with questions of general application and then with matters relating to particular aspects of the statutes which it considers should be brought to the notice of the Seanad.
3. Authority for making the statutes is contained in the Irish Universities Act, 1980; and the sections of this Act which refer to statutes are as follows:
This section authorises the governing body of the National University of Ireland and its Constituent Colleges to make statutes.
Subsection (3) of Section 4 is as follows:
“Statues made under this section may regulate any matter relating to the government of the university or college (including the appointment and remuneration of officers) or otherwise concerning the university or college so far as that matter is not regulated under this Act or by the charter of the university or college.”
Subsection (1) reads as follows:
“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 Iris Oifigiúil, and the statute shall be laid as soon as may be before both Houses of the Oireachtas.”
Subsection (2), as adapted, provides for disallowance in whole or in part by either House of the Oireachtas within a specified period, of any statute laid before it.
Subsections (3), (4) and (5) are as follows:
“(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.”
This section reads as follows:
“(1) 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.
(2) The powers and duties of the Irish Universities Committee may be exercised and discharged by any three or more members of the committee, so long as one of those members is a person who is or has been a judge of the supreme court, and, in the case of appeals under section seventeen of this Act, then so long as two of those members are persons who are or have been judges of the supreme court.
(3) The costs of all parties of and incident to the hearing of any petition or appeal under this Act which is heard by the Irish Universities Committee shall be in the discretion of the committee.
(4) The Lord Lieutenant in Council may make rules generally for regulating the procedure of the Irish Universities Committee, and may, by those rules, prescribe the time within which any appeal under this Act, may be made, and the mode in which any costs allowed under this Act may be recovered.”
Right of Petition:
4. The Committee investigated how the petition procedure provided for by section 5 (4) is now being implemented. The question was raised with the Department of the Taoiseach which seems to be the authority responsible for making the necessary statutory adaptation under the Constitution (Consequential Provisions) Act, 1937 (From 1922 to 1937 this was a function of the President of the Executive Council under the Adaptation of Enactments Act, 1922, Section 11.). That Department’s reply to the Committee incorporates a memorandum from the Department of Education which is reproduced in Appendix I.
The Committee is concerned to find that the petition procedure is not in fact being implemented. It appreciates that in the circumstances outlined by the Department of Education there were reasons why since 1960 the petition procedure was allowed to remain in abeyance. Nevertheless the Committee is concerned that over a period of fifty years no machinery was provided by adaptation or amending legislation for carrying out a procedure prescribed by Statute. Moreover it notes that two cases, which might have been expected to be dealt with by the Statutory petition procedure, were in fact dealt with in another way.
Delays in Presentation:
5. The resolution of reference of the Committee assigns to it the duty of determining whether an instrument should be brought to the attention of the Seanad because of unjustifiable delay in presentation. Presentation of university statutes is governed by section 5 (1), as adapted of the 1908 Act, which reads as follows:
“When any statute has been made under this Act, a notice of its having been made and the place where copies can be obtained shall be published in Iris Oifigiúil and the statute shall be laid as soon as may be before both Houses of the Oireachtas.”
In determining whether there has been unjustifiable delay in the laying of an instrument this Committee has reference to a provision contained in Section 3 (1) of the Statutory Instruments Act, 1947, from which it is inferred that it is practicable to lay within, at least, seven days. The Committee has, in common with previous Select Committees, adopted this period as a criterion and it decided accordingly to request the Department of Education and the Universities to explain the delays in laying certain of the statutes before the Seanad. Correspondence on this matter is contained in Appendix II.
The Select Committee wishes to make it clear that when it decided to raise the matter of delays in presentation it had no knowledge of an existing dispute between the Department of Education and the Universities on the matter. The Committee’s sole concern is to see that the Statutory requirements relating to the laying of the statutes before the Seanad are met.
It appears that the practice, for which there seems to be no Statutory authority, of submitting statutes when made to the Department of Education is responsible for the delays. It is obvious that, because of the considerable amounts of voted monies involved, there should be Department control, but the particular machinery used means that the provisions of Section 5 (1) of the 1908 Act are abused. It appears to the Committee that, pending new legislation, it would be better to have draft statutes agreed with the Department so that the statutes when made could be laid in proper time.
The Committee feels that amending legislation should be enacted as soon as possible in view of the anomalies disclosed in relation both to petitions and presentation.
6. On ground (ii) of its Resolution of Reference, viz., “that it appears to make some unusual or unexpected use of the powers conferred by the Statute under which it is made,” the special attention of Seanad Éireann is drawn to statute LXXI of University College, Dublin. This statute provides for making pensionable the former non-pensionable allowance payable to the President of the College in respect of the expenses of his office and representations were made to the Secretary and Bursar in regard to the question of treating as pensionable a non-pensionable allowance. As will be seen from the correspondence which passed between University College, Dublin and the Department of education (Appendix III) this matter was in dispute but was finally agreed by the Department of Education and the Committee understands that an amending statute will be made.
7. On ground (iii) viz., “that it purports to have retrospective effect where the parent Statute confers no express authority so to provide”, the special attention of the Seanad is drawn to the retrospective element in many of the statutes. It appears to the Committee that the need for retrospection arises usually because of the practice, already referred to in paragraph (5), of making statutes before Departmental agreement is obtained. If the procedure recommended in that paragraph were adopted need for retrospection would be greatly reduced.
8. On ground (v) viz., “that for any special reason its form or purport calls for elucidation” the Committee desires to draw attention to the fact that the form of the statutes made by the National University and its Constituent Colleges does not conform to the practice which has evovled in relation to most statutory instruments. However, the Committee does not feel that this is of great importance. It will be seen (Appendix IV) that the Colleges have agreed to use the form used by the National University where their practice has varied from this and that the University and Colleges have agreed to provide explanatory memoranda where this is necessary.
(Signed) W. A. W. SHELDON,
29th March, 1973.