Trinity tangles with the introduction of an outsider

There were never likely to be headlines from a Joint Committee on a Private Bill chaired by Fine Gael Senator Mr Maurice Manning. The seven-member committee was established to deal with the Trinity College Dublin and the University of Dublin (Charters and Letters Patent Amendment) Bill, 1997. It has had to consider legislation which would provide for the appointment of the first outsider to the board of TCD, which was founded in 1592 when Queen Elizabeth I granted a charter to a body to be known as the College of the Holy and Undivided Trinity of Queen Elizabeth near Dublin.

The current issue arises out of the Universities Act, 1997, which required, among other things, the appointment of the first outside representative to the TCD board. However, introducing the proposal has been far from straightforward. The TCD hierarchy argued that in its 400-year history, the TCD charter had never been affected by Acts of Parliament but by a process which in the State necessitated the introduction of a Private Bill.

This process of changing the charter requires an elite academic group within TCD to approve a Private Bill which then would be passed by the Oireachtas.

It is an archaic parliamentary device inherited from the Westminster system at the foundation of the State. At that time, the only way to get a matrimonial divorce was by a Private Bill.

In effect, the purpose of private legislation is to introduce changes on a matter which is not public policy but which does require legislation. The Bill is not promoted by the Government or the Opposition but by a private body.

The Trinity Bill is only the third such Private Bill in the last two decades. In 1992, Lord Altamont had a Private Bill agreed by the Oireachtas to allow his estate in Westport to be willed to a female heir while Limerick Marts sought to amend its charter in 1992.

The role of the committee, chaired by Fine Gael Senator Maurice Manning, is quasi-judicial. Evidence is taken under oath. Legal representatives as well as the committee members have the right to question those giving evidence. All should have been hunky-dory, but the Bill has been opposed by TCD economics lecturer Dr Sean Barrett. He has been a trenchant critic of the idea of external representation, arguing that it would dilute the independence of the college.

Dr Barrett claims an outsider on the TCD board would "fundamentally change the nature of Trinity College" and would be "the worst thing that has happened in our 400 years".

Because the Bill has been opposed, the committee has had to take evidence from the Provost, senior academic staff at Trinity who back the Bill, and its opponent, Dr Barrett. The seven committee members have heard some strange tales surrounding the acceptance of the Bill within the walls of Trinity.

The Bill, which was drafted by the TCD board, was voted on by an elite academic group in November 1997. Some 68 per cent of the electorate gave the necessary assent. However, Dr Barrett appealed the vote, arguing the board had no power to send a petition to the Government for a Private Bill and also that the voting process had been "irregular".

This irregularity arose from an action of the College Registrar, Prof Mayes, who was, in effect, the returning officer. He sent an email to his daughter saying the TCD hierarchy was short of a majority and "could do with every assent that comes in". The e-mail was forwarded to other students and eventually published in the college newspaper, Trinity News.

Prof Mayes knew a majority in favour of the Bill had not been reached as each ballot paper, signed by the voters, was opened before the closing date for voting, so it was possible to see who had voted and who had not.

To adjudicate on the Barrett appeal another Trinity tradition came into play. The appeal process was heard by two so-called Visitors - the Chancellor of the university and a Supreme Court judge.

They described the e-mail as "regrettable" and sanctioned a second ballot which was held in secret in February 1998. Some 73 per cent of those voting were in favour of external board representation. However, even with this second vote the trials and tribulations of the Private Bill were not concluded.

A question arose as to whether a 75 per cent majority was required in the TCD ballot before the Oireachtas could consider the Private Bill. The matter was based on Standing Order 46 of the Oireachtas in dealing with a Private Bill. The Joint Committee on Standing Orders received varying legal advice on whether the Standing Order applied to the vote in TCD. As there was a doubt, the committee decided to dispense with Standing Orders. Both Houses of the Oireachtas subsequently adopted this decision.

The TCD Private Bill has been the subject of almost 14 hours of discussion by Senator Manning's committee. The minutiae of the discussion led one member, Mr Des O'Malley, to bemoan "all the silly old things they did over 400 years ago". At another juncture, when questioning Prof Mayes, he observed that "most Private Bills do not have the lengthy and tortuous passage, yours has, professor".

By way of example of just what the committee has experienced, the 1592 Trinity College Charter - and subsequent Charter of 1637 - were in Latin, as the official court business of the sovereign was conducted in that language. Because of this, any amendment had to be in Latin. Thus, section 4 of the Private Bill, which deals with the election of the provost, is given in the Latin text.

There have also been deliberations as to the distinction between the University of Dublin and Trinity College. Prof David McConnell told the committee this was "a matter of enormous discussion between lawyers, historians and others for a very long time".

However, this distinction could be the undoing of the Bill, which notes that approval has been received from the Senate of the University of Dublin. However, it emerged in evidence that the Senate had, in fact, never been consulted. An amendment to remove this factually incorrect situation was rejected last week by a majority of the committee.

So while the broad thrust of the Bill has been accepted, the Oireachtas will next have to consider what to do with legislation that contains a section that may be inaccurate. Then there is the matter of Standing Order 46. Mr O'Malley told the committee he could "see the words judicial review written all over this". Dr Barrett's crusade to keep the board of Trinity free of outsiders may not be over yet.