The 1988 Education Reform Act says this about academic freedom:
(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;"(1)
I put forward controversial and unpopular opinions and lost my job. Surely as an academic, I was entitled to protection under this piece of statute law? According to my skeleton arguments provided to the Employment Appeal Tribunal last week, the University's entire disciplinary process including the sanction imposed upon me (dismissal), as well as the conclusions drawn by the Employment Tribunal should have been framed by this piece of legislation. So important is it that the University have incorporated it into their Royal Charter at section 13.
A definition of academic freedom and why it exists
The level of protection afforded to academics is unique in employer-employee relations. By the way, this is not to suggest that academics are special. It's a by-product of the function universities play in society, at the forefront of cutting-edge research, analysis and as cauldrons of contentious, innovative ideas and theories. It's what drives society and technological advancement forward. The more conservative or traditionalist minded might argue that academic freedom should only offer protection to academics whilst acting and producing ideas and theories within their particular fields of knowledge. It's an interesting argument. It's also entirely mistaken.
Academic freedom as a human right - a European perspective
A recent ruling by the European Court of Human Rights expands upon this:
"35. In this connection, the Court underlines the importance of academic freedom, which comprises the academics' freedom to express freely their opinion about the institution or system in which they work and freedom to distribute knowledge and truth without restriction (see paragraph 21 above)."(2)
I'll posit for the record the assertion that academic freedom in our public universities must be regarded as sacrosanct by academics, the trade unions who represent academics and lecturers, and wider society. It must be defended at all costs. Why? Well the ECHR elaborated on why academic freedom is vital for democratic societies:
"21. In its Recommendation 1762 (2006), the Parliamentary Assembly of the Council of Europe adopted the following declaration for the protection of academic freedom of expression:
“...
4. In accordance with the Magna Charta Universitatum, the Assembly reaffirms the right to academic freedom and university autonomy which comprises the following principles:
“...
4. In accordance with the Magna Charta Universitatum, the Assembly reaffirms the right to academic freedom and university autonomy which comprises the following principles:
4.1. academic freedom in research and in training should guarantee freedom of expression and of action, freedom to disseminate information and freedom to conduct research and distribute knowledge and truth without restriction;...
4.3. history has proven that violations of academic freedom and university autonomy have always resulted in intellectual relapse, and consequently in social and economic stagnation;...”(3)
It's a debate that's raging in Canada. If as academics, we lose the right to speak out or publish freely on the way our universities are run or on important matters of public concern in our universities and other issues outside the rarefied atmosphere of academia, what might this mean for the rest of society? Societies would become stagnant. Industries moribund. If the freedom to question and speak out is lost in our universities, the corollary of this would be that our political systems would become even less accountable and increasingly opaque. Yet as we daily lose civil and political rights as the market takes over functions and services once provided by democratically elected councils and the state, the erosion and assaults on academic freedom becomes another battle line. It's intimately linked in the wider sense, to the marketisation of Higher Education and the student as a 'consumer' of knowledge and the walking piggy-bank to the HE sector. According to the mantra, managers should manage, academics should research and teach. Never the twain should meet.
July the 4th and the decision of the EAT
It's within this context that I wish to discuss the decision of the Employment Appeal Tribunal last Wednesday 4th July, to not permit me to raise the issue of important Article 10 convention rights to freedom of speech in particular, academic freedom of speech. It might be worth reiterating for the benefit of the judiciary and the professionals that labour within the legal system, that all law must be applied within the context of the Human Rights Act 1998 and the European Convention on Human Rights as established in 1950 by the then Council of Europe. Human Rights don't have to be raised, its a given that they exist.
The logic behind the EAT's refusal was that I had not fully pursued the matter of my human rights in the Employment Tribunal last year. Apparently if they are not pursued in the lower tribunal, they cannot be then raised in the higher tribunal. I find this odd given that I'd raised them in my appeal because of the the ET's reliance on their interpretation of 'academic freedom' which according to European law is considered central to Freedom of Speech. But don't take my word for it.
An Employment Tribunal's interpretation of 'academic freedom'
If one peruses the Employment Tribunal's judgement, one can read the Tribunal panel's interpretation of academic freedom:
"43. We think it is worth noting that freedom of expression is very important in universities but primarily applies to academic freedom to make whatever statements are justified in the academic’s view founded in their research, knowledge etc. It does not apply across the board to any issues arising with[sic] an academic institution."
"44. We appreciate the claimant's position that it was felt that there were elements of corruption involved but there were legitimate ways in which the claimant could have raised these issues and the fact that he did not attempt to do that, we think, was unfortunate and ill-judged. (4)
"44. We appreciate the claimant's position that it was felt that there were elements of corruption involved but there were legitimate ways in which the claimant could have raised these issues and the fact that he did not attempt to do that, we think, was unfortunate and ill-judged. (4)
Firstly, before we sink our teeth into the meatus of the matter, it's worth reiterating that the ET raised the matter of academic freedom in their judgement. Therefore, the conclusions they drew in relation to their judgement concerning my authorship and the distribution of the Vice Consul's Newsletters, as well as the sanction imposed by the employer against me (dismissal) and whether this was fair or unfair, was informed by the ET's interpretation of 'academic freedom'.
Secondly, the ET's interpretation of Academic Freedom is simply wrong in law. According to the law, academic freedom does apply across the board to any issues arising within an academic institution. It's the '...without restriction...' bit in Sorguc v Turkey [2009].
Thirdly, according to the law, the Vice Consul's Newsletters were a perfectly "legitimate way" to raise such matters of corruption and corporate governance. It's the "...freedom to distribute knowledge and truth..." bit in Sorguc v Turkey [2009]. Academic freedom as laid out in the judgement of the ECHR, ensures that any mechanism by which one wishes as an academic to raise important matters, is legitimate. In arguing that they were not, the ET have erred in law and breached my Article 10 rights.
Lastly, the only limitation placed upon academics exercising their right to academic freedom of speech (which is a qualified right), is that they act within the law or that they do not violate the rights of others. Now this is the interesting part because the ET have accepted that I produced the Vice Consul's Newsletters in order to highlight issues pertaining to corruption and corporate governance. So it's implicit that there's a public interest issue at stake here. Moreover, the University never claimed that the Newsletters or the contents were 'illegal'. Indeed, the University have never denied any of the allegations contained within the Vice Consul's Newsletters. In fact their own external TCM Report concluded in 2010 demonstrated that managers had manipulated the appointments process in the Salford Business School.
Secondly, the ET's interpretation of Academic Freedom is simply wrong in law. According to the law, academic freedom does apply across the board to any issues arising within an academic institution. It's the '...without restriction...' bit in Sorguc v Turkey [2009].
Thirdly, according to the law, the Vice Consul's Newsletters were a perfectly "legitimate way" to raise such matters of corruption and corporate governance. It's the "...freedom to distribute knowledge and truth..." bit in Sorguc v Turkey [2009]. Academic freedom as laid out in the judgement of the ECHR, ensures that any mechanism by which one wishes as an academic to raise important matters, is legitimate. In arguing that they were not, the ET have erred in law and breached my Article 10 rights.
Lastly, the only limitation placed upon academics exercising their right to academic freedom of speech (which is a qualified right), is that they act within the law or that they do not violate the rights of others. Now this is the interesting part because the ET have accepted that I produced the Vice Consul's Newsletters in order to highlight issues pertaining to corruption and corporate governance. So it's implicit that there's a public interest issue at stake here. Moreover, the University never claimed that the Newsletters or the contents were 'illegal'. Indeed, the University have never denied any of the allegations contained within the Vice Consul's Newsletters. In fact their own external TCM Report concluded in 2010 demonstrated that managers had manipulated the appointments process in the Salford Business School.
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| Taking on the establishment: It's a shit job... but someone's got to do it |
Now that's a huge night-soil cart load of information to take in. But there's one further little silage-nugget that may give my former colleagues within the Salford branch of the UCU as well as non-union academic and teaching members of staff some cause for concern at Salford. You see according to the judgement of the Employment Tribunal, truth is no guarantee of protection under the aegis of academic freedom. It sounds a little perverse doesn't it? Again, consider the paragraph below of the ET's judgement:
"23.13 It has been suggested from time to time, including at the Tribunal, that the Respondent should have investigated the truth of the allegations before dismissing the claimant, however, the issue was clearly how the matter had been raised allowing the matters to willy nilly enter the public domain and the failure to follow legitimate pathways."
We've already dealt with the 'legitimate pathways' aspect above. It is however, an astonishing admission by the ET that the establishing of the truth (the truth of the allegations in the Vice Consul's Newsletters) by the University in their internal investigations, really should play no part in the University's internal disciplinary procedure on this matter.
An idealist doltmund?
Call a chap a bit of an idealist but surely any reasonable person would conclude that in order to prove that the contents of the Vice Consul's Newsletters were 'malicious' as alleged by the University, and demonstrate that they brought 'the University into disrepute' as alleged by the University, one would need to investigate the 'truthfulness' of the allegations, wouldn't one? If the University found upon completion of their investigation that the issues in the Newsletters were indeed true as I stated in the Employment Tribunal, then how could I bring the University into disrepute. It would already be there. It's quite logical really. It's a bit like blaming a newspaper reporter for bringing an MP and the government into disrepute because he happened to report that the aforesaid MP fiddled his expenses.
Wetting the bed
Look at it the other way round. If all a chap is doing is spreading untruths or truths for that matter, that are not rooted in matters pertaining to public interest or matters of public concern in a publicly funded institution, then 'malice' could easily be concluded and proved. Some elaboration might be necessary. There is no public interest in an academic at University of Fleeceham publishing a document that states that Manager A wets his/her bed, which may be the truth. There was a public interest in publishing a document that focused on bullying and the manipulation of the appointments process in the Salford Business School as highlighted in the Newsletters. Of some note, it was also highlighted in the University's own TCM report published in 2010 which looked into these matters within the Salford Business School. This is more pertinent when public monies are involved. Did the TCM Report bring the University into disrepute...?
An idealist doltmund?
Call a chap a bit of an idealist but surely any reasonable person would conclude that in order to prove that the contents of the Vice Consul's Newsletters were 'malicious' as alleged by the University, and demonstrate that they brought 'the University into disrepute' as alleged by the University, one would need to investigate the 'truthfulness' of the allegations, wouldn't one? If the University found upon completion of their investigation that the issues in the Newsletters were indeed true as I stated in the Employment Tribunal, then how could I bring the University into disrepute. It would already be there. It's quite logical really. It's a bit like blaming a newspaper reporter for bringing an MP and the government into disrepute because he happened to report that the aforesaid MP fiddled his expenses.
Wetting the bed
Look at it the other way round. If all a chap is doing is spreading untruths or truths for that matter, that are not rooted in matters pertaining to public interest or matters of public concern in a publicly funded institution, then 'malice' could easily be concluded and proved. Some elaboration might be necessary. There is no public interest in an academic at University of Fleeceham publishing a document that states that Manager A wets his/her bed, which may be the truth. There was a public interest in publishing a document that focused on bullying and the manipulation of the appointments process in the Salford Business School as highlighted in the Newsletters. Of some note, it was also highlighted in the University's own TCM report published in 2010 which looked into these matters within the Salford Business School. This is more pertinent when public monies are involved. Did the TCM Report bring the University into disrepute...?
Doin' the right thang
So you see, it may be the case that senior managers and certain staff members were upset about the content of the Newsletters. That happens when a privileged and powerful minority are publicly held to account. The ET accepted that I was only interested in matters of corruption and corporate governance and my reason for producing the Vice Consul's Newsletters (see paras 23.2, 37 of the ET Judgement). According to Sorguc v Turkey [2009] I was perfectly within my rights to author and publish the Vice Consul's Newsletters. It places no restrictions upon how I or any other academic staff at Salford or in any other university in Europe choose to raise such issues.
Wrong in law
There is no court higher than the ECHR. Law established in Strasbourg trumps even the UK courts. 'It's unlawful for a public authority to act in a way that is incompatible with a Convention right' according to section 6 (1) of the 1998 Human Rights Act. The University as a public authority, acted in a way that is incompatible with my article 10 rights. As an academic, I was entitled to the protection afforded to academics in the University's own Charter, the Education Reform Act 1988, and in European Law. Indeed, I should still be entitled to this basic human right. In upholding the University's decision to dismiss me as fair, the Employment Tribunal have compounded a breach of my Article 10 rights. This has been further compounded in that the ET clearly erred in law with regard to their narrow interpretation of 'academic freedom', one that bears little resemblance to that as established in law.
Perfunctory... a nice word
What's more, the Employment Appeal Tribunal dealt with this important breach of my human rights in a perfunctory manner in deciding to refuse me permission to discuss the breach of my Article 10 rights at the hearing. In doing so, the EAT has in my view committed a more serious breach of my Article 6 rights:
"1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law..."(5)
In the context of employment law, human rights may be irksome. It might explain why in my opinion the EAT chose instead to bat this contentious issue into the long grass.
Twenty one days
The Tribunal also refused me permission to appeal which is standard. So now I have 21 days to lodge my appeal with the Court of Appeal in London. I find it odd that at a national level, my own union hasn't picked up the baton on this one. They've twice refused me funding for legal representation.** It's down to lil' 'ol' me, with only a single penny to rub against the trouser of a threadbare de-mob suit, who finds himself not only fighting for the rights of academics to enjoy academic freedom in the UK, but the fight to gain access to some notion of equality of arms and justice within the wider UK courts system.
Notes and references
*This does refer to the Salford Business School prior to the investigation conducted by TCM Group and not the Salford Business School of today.
** I would like to take this opportunity to sincerely thank the Salford UCU branch including its President Chris Sheehy, the membership, the Committee and the branch officers for continuing to help support my fight for justice. The UCUS have been invaluable in providing some financial support by covering ancillary costs associated with my ET and EAT hearings. Without this support, I would have holed me below the hemline many years back. I hope the branch will continue to support me in this battle to protect and and reaffirm 'Academic Freedom' as laid out by the ECHR.
(1) Education Reform Act 1988, section 202, (2) (a) 'Academic Tenure' sourced athttp://www.legislation.gov.uk/ukpga/1988/40/section/202
(2) Sorguc v Turkey 17089/03 [2009] ECHR 979, paragraph 35** I would like to take this opportunity to sincerely thank the Salford UCU branch including its President Chris Sheehy, the membership, the Committee and the branch officers for continuing to help support my fight for justice. The UCUS have been invaluable in providing some financial support by covering ancillary costs associated with my ET and EAT hearings. Without this support, I would have holed me below the hemline many years back. I hope the branch will continue to support me in this battle to protect and and reaffirm 'Academic Freedom' as laid out by the ECHR.
(1) Education Reform Act 1988, section 202, (2) (a) 'Academic Tenure' sourced athttp://www.legislation.gov.uk/ukpga/1988/40/section/202
(3) Sorguc v Turkey, para 21
(4) Reserved Judgement Dr Gary Paul Duke v University of Salford, Manchester Employment Tribunals, 16th November 2011, paragraph 43.
(5) Schedule I, Human Rights Act 1998, sourced athttp://www.legislation.gov.uk/ukpga/1998/42/schedule/1
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