With the Bill under scrutiny in the House of Lords, we can expect plenty of learned discussion on the fundamentals of university life. Amongst the issues likely to take up air time is the question academic freedom. What does it mean? Does the Bill provide for its preservation? Or erode it?
There is no statutory right to academic freedom. But there are various protections enshrined in governing documents for the UK’s universities: our analysis considers the current state of freedom for individual academics, rather than a concept of institutional academic freedom.
Chartered universities
The starting point is section 202 of the Education Reform Act 1988. The Act abolished the concept of academic tenure which meant that academics could be dismissed because of redundancy or for good cause. The University Commissioners was established to ensure that the Charter and Statutes of publicly funded universities contained procedures to deal with such dismissals, and in discharging that duty the commissioners had to have regard to the needs:
(a) to ensure that academic staff have freedom within the law to question and test received wisdom, and to put forward new ideas and controversial or unpopular opinions, without placing themselves in jeopardy of losing their jobs or privileges they may have at their institutions;
(b) to enable qualifying institutions to provide education, promote learning and engage in research efficiently and economically; and
(c) to apply the principles of justice and fairness.
There was a Model Statute which charter universities were required to adopt, enshrining the protection within their own governing documents.
University Statutes cannot be amended without Privy Council approval, so there was a mechanism for external control over chartered universities simply opting out of these provisions. Over time, the Privy Council has approved deregulatory changes to the Model Statute at some universities, but it has always insisted that the academic freedom principles remain within its purview. In some cases, universities have retained the principle of academic freedom within Statutes and moved the process for deadline with academic staff dismissal to Ordinances which can be amended by the university’s governing body without recourse to the Privy Council.
Former polytechnics
Their initial constitutions were in a form prescribed by an order of the Privy Council, and academic freedom was enshrined from the outset. For a long time, no changes were made to these constitutions but, in the mid-2000s, the Labour government announced deregulatory measures which allowed the former polys to apply to modify their Instrument and Articles so that relevant provisions could be removed and put into subsidiary documents such as regulations, which could then be amended as needed by the institution without the need for Privy Council approval. As part of those deregulatory measures, the Labour government identified areas of public interest which would remain within the purview of the Privy Council: academic freedom was one of these.
Other publicly funded universities
The Privy Council requires an academic freedom safeguard in the constitution of other publicly-funded universities though it doesn’t appear that private universities have been required to have a constitutional protection of academic freedom. Wonkhe is aware of one case of a private university which had a statement on academic freedom but where that provision is outside the Articles of Association.
The proposals in the Bill
In section 14 of the Bill, the Office for Students is required to publish a list of public interest principles that will apply to registered providers which must include the academic freedom provision, so it appears that in future all registered providers will be required, as a condition of registration, to have governing documents consistent with this provision. And breach of a registration condition will lead to sanctions such as fines, suspension of registration and in extreme cases removal from the register.
Limits on academic freedom
The principal limitation is that the exercise of the freedom must be “within the law”. Examples of what would take it outside the law include:
- Criminal offences concerning violent, threatening or abusive conduct and speech under the Public Order Act 1986
- Criminal offences under the Protection from Harassment Act 1997
- Stirring up of racial and religious hatred under the Public Order Act 1986
- Terrorism Offences under the Terrorism Acts 2000 and 2006
- Civil law constraints, in particular, torts relating to defamation and malicious falsehood as well as the civil law rights under the Protection from Harassment Act 1997.
- Equality and discrimination law, primarily the Equality Act 2010
Grey areas
Within the current law, there is clearly scope for disagreement about the precise extent of academic freedom.The principle of academic freedom clearly extends to an academic’s teaching and research. But does it extend to topics outside their area of expertise? For example, would Holocaust denial be protected as a matter of academic freedom if the academic were a historian? A physicist?
Does academic freedom extend to criticism of how the institution is run? A report into the dismissal of university lecturers at the then University College Swansea concluded that academic freedom included the right to do so.
Does it extend to objecting to being told how to teach? For example, some have argued that lecture capture is an intrusion into academic freedom. What about requirements to have teaching qualifications? Or to adapt teaching methods in response to student feedback?
Academic freedom and the Bill
Academic freedom is likely always to be an area of contest: there will be boundaries and marginal areas, and in those spaces, there will be debate about the rights and wrongs. There will be limits to freedom, but those limits are debateable. The Bill as prepared by the government, particularly the provisions for OfS in its registration conditions, provides for the protection of academic freedom. This is insufficiently strong for everyone’s taste.
For their Lordships’ debate on the Bill, there are amendments proposed which would put academic freedom within the legislation in the addition of sections on the function and establishment of universities (proposed by Wilf Stevenson (Lab), Alison Wolf (Crossbench), Susan Garden (Lib Dem) and Julia King (Crossbench)). There’s also an addition, within a section defining institutional autonomy from Bob Kerslake (Crossbench): which would “give the freedom of academic staff within the law: (i) to question and test received wisdom, and (ii) to put forward new ideas and controversial or unpopular opinions, without placing themselves in jeopardy of losing jobs or privileges they may have at an institution.”
We will have to see whether the fight over the Bill in the Lords sets the matter of academic freedom in stone. And, if so, we may have to wait longer to see academic freedom provisions tested in practice, and in the courts.
All the EU states have protection for freedom of speech in their constitutional documents (with the exception of the UK), and the majority also have some form of (indirect or direct) constitutional protection for academic freedom. However, as well as providing protection for academic freedom within their constitutions (which is frequently couched in general terms), most of the EU states have specific h.e. laws that provide detailed information on how their universities are to be run. Such laws usually contain an explicit reference to academic freedom. In Ireland, for example, the 1997 Universities Act states: “A member of the academic staff of a university shall have the freedom, within the law, in his or her teaching, research and any other activities either in or outside the university, to question and test received wisdom, to put forward new ideas and to state controversial or unpopular opinions”. The only legal protection for academic freedom in the UK higher education sector is provided not in a specific and comprehensive h.e. or universities act but in a subordinate section of the 1988 Education Reform Act, entitled “Miscellaneous and General”, and which states:
‘There shall be a body of Commissioners known as the University Commissioners who shall exercise, … the functions assigned to them by those sections.
(2) In exercising those functions, the Commissioners shall have regard to the need—
(a) to ensure that academic staff have freedom within the law to question and test received wisdom, and to put forward new ideas and controversial or unpopular opinions, without placing themselves in jeopardy of losing their jobs or privileges they may have at their institutions;
(b) to enable qualifying institutions to provide education, promote learning and engage in research efficiently and economically; and
(c) to apply the principles of justice and fairness.’
UK legislation on academic freedom is aberrant when compared to the other EU nations. First, the legal protection for academic freedom in the UK does not arise as a result of a specific law that relates to the higher education function in general, or universities in particular. In fact, the section of the Education Reform Act which relates to academic freedom appears in Part IV under the heading of “Miscellaneous and General” of the Act, the rest of which deals primarily with schools and the National Curriculum (Part I), the incorporation of higher education institutions maintained by local education authorities (Part II), and the abolition of the Inner London Education Authority (Part III). Second, under the 1988 Education Reform Act the legal protection for academic freedom takes the form of a right to a retrospective review for remedial redress by individuals. Hence the University Commissioners created under the Act are not incessantly vigilant in providing ongoing oversight of the continuing health of academic freedom for all teaching and research staff employed in British universities; rather, they will only act when an individual academic claims that s/he has been made redundant on grounds other than “just cause”.
Moreover, academic freedom is a professional freedom, yet the Commissioners appointed under the 1988 Act would neither enable nor guarantee freedom for all other (non-aggrieved) members of the academic profession, in their current and future scholarly activities of research and teaching. Being guaranteed the freedom to act unimpeded in the workplace as an academic in the here and now (as occurs under the Irish legislation), is clearly qualitatively different from being allowed to exercise a limited freedom constrained by the fear of possible redundancy, even if redress may subsequently be granted for a past denial of liberty. More importantly, today, even if an academic did believe that s/he had been made redundant without “just cause”, it would not be possible to request the Commissioners to intervene. Once established for three years following the 1988 ERA, the duties and powers of the Commissioners were confirmed annually thereafter by means of a statutory instrument; the last such was signed by Gillian Shepard, Secretary of State for Education, in March 1995, continuing the Commissioners’ responsibilities until 1st April 1996 after which, as no further statutory instruments were signed, the Commissioners ceased to operate. In essence, the legal protection for academic freedom for teaching and learning in the UK is generally at a lower level than the majority of other EU nations. Moreover, arguably, the demands of the UK government for research “impact” has further encroached on academic freedom and it is likely that the Teaching Excellence Framework, currently being implemented by Jo Johnson, the Minister of State Minister for Universities and Science, will impose similar constraints on the academic freedom to teach, as the REF has had on the freedom for research.