"Academic research is essentially aimed at the establishing of truths; and so should be protected from anything that reduces the likelihood of achieving that aim". Such was Professor Kathleen Stock's powerful justification for protecting academic freedom. Her remarks opened a forum hosted by Taylor Vinters and the University of Buckingham on "Academic Freedom Under Threat" in March 2021.
We were delighted to bring together a stellar list of speakers from academia, the law, politics and journalism to discuss the threats which academic freedom faces, and possible policy and legal changes to mitigate those threats. By considering a wide range of different issues from different perspectives, our hope was to generate debate on, and creative solutions for, the threats to academic freedom, both current and future, and in the UK and abroad.
What are the threats?
Following Professor Stock's opening lecture, in which she also relayed the attempts to 'cancel' and 'no platform' her for her gender critical views, Professor Eric Kaufmann presented the hard data on the threats to academic freedom.
Alongside his own detailed findings, he drew attention to a 2019 report by the University and College Union ("UCU"), based on survey data from 2000 UK academics, which stated: "The reality is that, in the overwhelming majority of instances, UK academics report statistically significantly higher levels of systematic abuse of their academic freedom, than their European counterparts in relation to the four constituent elements, and across a wide array of measures." By abuse, the report refers to bullying, psychological pressures and fear of loss of privileges and even physical harm.
This led to the UCU calling for further protections for academic freedom. Such research echoes the findings of Professor Kaufmann's own research, including his paper for the Policy Exchange, from which the Government took many of its policy proposals included in its recent white paper on academic freedom.
The Government's proposed solutions
Professor Kaufmann argued that external intervention is urgently required. The Government does seem convinced that there is a threat to academic freedom. The legislative solutions which it has proposed are set out in the recent white paper.
Our forum considered in detail the existing law which protects academic freedom and free speech on campus, and whether the Government's proposals would be sufficient to satisfy its own stated aims of mitigating the threats on campus.
It was recognised that the Government needed to draw a sharper distinction between free speech on campus and academic freedom. The former is vitally important for the proper functioning of a university within liberal society, but it is in essence a right of ordinary citizens, enhanced to some degree by positive duties on universities, which is dependent on its proximity to the academy. In that sense, it is a contextual right.
In contrast, academic freedom is an enhanced individual right of a specialist subset of citizens. Put briefly, it is the right of academics 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. Of course, the freedom to speak freely is integral to that, and academic freedom of speech is a concept recognised by the European Court of Human Rights as being worthy of a particularly high level of protection under the Convention.
In order to draw out these distinctions, and to give academic freedom (of speech) legal protection which is commensurate with its unique character, we suggest that the Government amends its proposals especially to ensure that:
- academic freedom and protected academic expression are given a more precise definition; and,
- the individual quality of academic freedom is properly reflected.
As discussed in detail here, we believe the simplest way to achieve this is to use employment law to give academics an automatic 'Day 1' protection against dismissal and detriment when exercising their academic freedom, rather than the Government's proposal to introduce a new, statutory 'tort' (legal right to claim damages) that depends upon a breach of a more general duty to promote free speech "within the law" on campus. This is a more workable and focused solution that resolves many of the criticisms levied against the Government proposals to date.
"Within the law"
This is also an excellent opportunity to 'bring home' and 'gold plate' the human rights protections afford to academic freedom by the European Court, as well as fill gaps and address potential tensions with UK law (e.g. the Equality Act 2010). This will clarify what "within the law" means with regard to academic freedom of speech.
For example:
1. What precisely should the scope of academic freedom be? One answer could be to limit it to speech:
a) With a sufficient "academic element" (cf. Aksu v Turkey). This immediately raises the question of how that is determined. Must the paper be peer reviewed? Must the journal itself meet any minimum standards? Must the academic have adhered to basic standards relating to methodology and/or research ethic and integrity in order to qualify the work? Is 'bad' research covered?
b) Which is within the academic's professional competence and expertise when the speech in question wouldn't otherwise have such sufficient "academic element", such as extra-mural speech on Twitter or otherwise. The immediate objections to this are that certain disciplines (e.g. law, politics, philosophy) are not easy to delineate, and that accordingly certain academics may have a much broader right than others (e.g. physicists vs. philosophers).
In turn the counter to that is the question, why as a matter of principle should an archaeologist be placed in a privileged position regarding speech above an ordinary citizen on matters of, e.g., epidemiology? To grant enhanced speech protection that widely seems to me to risk diluting the very rationale for the concept for academic freedom (though see the next point).
c) More generally which concerns the governance of the academic institution or system in which they work. This could cover matters such as institutional diktats regarding curricula or institutional affiliations with organisations such as, e.g., Stonewall. It could also cover participation in professional or representative academic bodies.
2. To whom should academic freedom apply? This may seem like an obvious question, but it has received surprisingly little attention in the case law. In Universities' statutes and charters there can be inconsistent application of enhanced protections, e.g. early career or short term researchers are sometimes not covered. Presumably it is not desirable to replicate any such distinctions by analogy to such governing documents.
Further, should academic freedom extend to students? There is some justification for saying that the protection should kick in when the individual has achieved a certain level of expertise and/or produced work with a sufficient "academic element" from which that expertise and extra-mural speech might flow. However, that suggestion does seem somewhat quixotic and a bright line drawn at, e.g. the postgraduate level, may be preferable (bearing in mind that undergraduate students still benefit from the enhanced protections for free speech on campus.
3. How should the relationship between institutional interests - in particular, reputation and contractual obligations as between employer / employee - and academic freedom be managed? The European Court has suggested in Kharlamov v Russia the latter should be preferred over the institution's reputation (which it described as a 'mere institutional interest') in certain instances, but is that indeed a general principle and, if not, when does it apply and what are its limitations?
Further, the European Court has also held in the case of Wojtas-Kaleta v Poland that Article 10 rights can override the duty of loyalty to one's employer, even if there is an express obligation on the employee to that effect, where the speech concerns matters of public interest and concern. However, that case concerned a journalist, not an academic, so it is an open question as to whether the same principle might be carried across to academia.
4. How does the European Court's case law on academic freedom work in a UK context, taking account of (in particular) the Equality Act 2010? Notwithstanding the 'objective' element of the harassment provisions when considering the effect of speech (designed to avoid hypersensitivity amounting to harassment), there are concerns that this provision is misapplied or misunderstood in practice.
It may therefore be preferable to make it an explicit statutory requirement in an academic context to have particular regard to academic freedom and free speech when applying the Equality Act (cf. a similar requirement when applying the Prevent duty).
5. How should threats from foreign autocratic regimes be handled? This is a distinct question, but one which merits particular consideration in this context, especially considering the emerging threat from China. I would suggest that the Government consult with the group of academics who have a prepared a code of conduct on the protection of academic freedom in the context of increasing internationalisation in the sector.
While that code generally advocates a 'grassroots' approach, I still think there is merit in considering whether certain minimum standards can be required in international collaboration and funding agreements, such as regarding due diligence, risk assessments, mitigation measures (if needed), and whistleblowing mechanisms and protections for individuals.
More to do
These questions, and more, need addressing in the Government's proposals.
The experiences of Professor Stock, the data of Professor Kaufmann and the UCU, and the testimony of all academics who spoke at the Forum, show there is a problem with academic freedom and free speech on campus. The UCU's own comparative research has also established that the UK's legislative protections for it trail behind other advanced nations.
The Government has recognised this and is taking action, but we urge it to reconsider certain aspects of its proposals to ensure that they are effective at the mitigating the threats which the data show.
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