Higher Education (Freedom of Speech) Bill

Written evidence submitted by Dr David Merry, Research Fellow, University of Nottingham (HEFSB22)

1. This is a statement in support of amending the definition of academic freedom as per proposed amendment 28 by Dr David Merry.

2. Despite being a junior academic (I am a research fellow at the University of Nottingham). I have a unique background and I’m in unusual circumstances, which inclines me to speak somewhat more candidly than other junior research fellows.

3. I freely concede that most of this submission has now been made far more eloquently by Professor Anderson. However I would like to present a couple of further cases, as well as a few points of my own that may be of some benefit and while I make no claim to speak for all junior academics, I feel it may be worthwhile to the committee to hear the views of at least one.

4. It is no secret that academia has career progression issues. Discussion in still ongoing whether or not a drug cartel is an appropriate comparator model.

5. While this is less problematic in the sciences, this therefore means that every academic who has managed to establish themselves (indeed every academic who has given evidence) would not only have proved themselves by offering something of value, but something of value that is palatable to the existing establishment and public funding streams are largely guided by peer review of proposals of other academics.

6. Any other solution isn’t just sub-optimal it’s unworkable. It is therefore absolutely necessary that the widest amount of transparency and openness of this system happens.

a. And this has nothing to do with bickering academics in ivory towers or knowledge for the sake of knowledge

i. While it is not necessarily true that if the amount of public money spent on research would give the same return

ii. The amount that is allocated gives a permanent return on GDP and quality of life

b. Our own parliamentary system both evidences the universal truth that people perform better at criticising other people’s houses, and that the role of those not part of the establishment to hold that establishment to account is essential.

General principles

7. University: The word university is derived from the Latin universitas magistrorum et scholarium, which roughly means "community of teachers and scholars"

a. A university as an entity doesn’t have an academic opinion

b. The legitimacy of university autonomy stems from the individual autonomy of the members of its community and some form of democratic input from that community

c. In practical terms therefore a university exists to enable its community of teachers and scholars to teach and study

d. If a university doesn’t have some form of meaningful democratic governance, it should probably not be a university

e. "Some form of democratic governance" doesn’t necessarily mean either that employees have direct control over fiscal policy or an equal weighting for all university members, it’s neither a state, a commercial company or somewhere in the middle, it’s a university

i. Oxford has a senate which comprises of every professor for example

ii. The university of Nottingham (which I’m broadly in greater agreement with) has a senate with

1. Guaranteed seats for heads of department and faculty

2. Portion elected by all professors

3. Portion elected by all staff members above a certain paygrade

4. Portion elected from the student union

5. From this there is further selection to the council

a. Any issues I really have are in details such as proportions or whether those below the qualifying paygrade should get such a right after a set period of service

f. Meaningful democratic governance cannot exist without an informed electorate

8. University member:

a. Definition of University member may vary from university to university

i. University Of Nottingham’s charter of incorporation is all staff and students

b. A traditional qualification of an academic member of staff is a PhD

i. A PhD is not taught and isn’t merely an assessment of whether someone is an expert of the ridiculously narrow research question at hand. It’s also assessment of whether someone who was not judged an expert, can apply themselves to becoming one through the process creating an independent, original and significant contribution to their chosen topic. One in which they are now willing to put themselves and that body of work forward to be assessed by their peers and providing it is found to be so, earn the title.

ii. I am not suggesting only those academics with doctorates are qualified to teach or be protected under the new legislation. But I am suggesting that the ideals of what is considered a typical qualification of an academic should guide principals of academic freedom.

1. While I am also suggesting one PhD and one viva should be the end of it rather than go through the whole rigmarole all over again for those who pursued that path, for both harmony and fairness this freedom must be extended to all other currently employed or members of the university.

c. Not all universities include all staff in whatever variation of democratic participation exists. I would therefore recommend therefore that the wording includes both "staff and members"

i. This would grant some autonomy to the institution (academic staff who are not members are still covered) while still avoiding the existing trap below.

9. There will always be a reason why academic freedom is supressed.

a. If supressed it will always be one that is to the establishments interest to some degree

i. So currently we are dependent on the negative perception of a suppression of academic freedom against those other interests, in a matter where the establishment might be able to supress it happened if they supress it….

ii. In regard to freedom of speech in general, throughout history a change in circumstances has always been the excuse why a fundamental right is supressed (rightly or wrongly)

1. I am however at a loss to think of one more pathetic then "twitter now exists"

10. There is also an implicit point in Professor Anderson’s submission, which I intended to separately make but I would now instead draw your attention to it. Academic freedom protects the civil duty of academics.

a. He describes incidents that are unlikely to be to his direct benefit but rightly feels obligated to tackle them.

b. The hand that feeds us

i. Students

ii. Public money i.e the electorate

iii. Charitable money

iv. Private investments (which are just that and therefore obligations are fulfilled separately)

c. It therefore follows that there is a general duty to act in those parties’ interests regardless of whether it specifically impacts on personal funding or not.


11. Students are customers in the meaning that they are paying for an education

a. They are not paying for a qualification

b. If a degree doesn’t take an undergraduate either to the realms were there is yet to be a consensus or to the edge of what we understand then they’ve been cheated

c. It therefore follows that for that education to be as productive as possible discussions and debates should be free and expression of views protected

i. I’d define this as a safe space but I think that terms been taken.

The question of tenure

12. Conservatives removed tenure in 1988

a. I have opinions about that bill beyond this point that aren’t relevant to this bill but largely are in agreement with it’s removal

i. Again if anything I’d quibble over numbers

b. But as a general rule, people don’t get to be part of the establishment by being controversial, and therefore protecting only the establishment in the hope they might then change the habits of a life time isn’t an ideal solution.

c. Unfortunately (and probably at the same time the conservatives were railing at the powers of the civil service), this basically altered power structures from a small majority to a tiny minority of academics and administration staff.

d. It would be incorrect to automatically assume that this is more of a problem then a solution providing there is accountability , but equally it is clear to me (with the benefit of hindsight) that removing tenure meant that the UK in turn needs to have greater protections in place to compensate.

Chicago statement and UNESCO definition

13. The adoption of wording of the Chicago statement by universities is arguably not an example that universities can self-regulate, it’s an example that they can’t.

a. It’s a relatively new and vaguer definition then that found in the UNESCO definition and contains "confidentiality interests" or "incompatible with the functioning of the university" within the statement itself.

i. The definition of these would be of course then decided by the university despite the obvious conflict of interest.

ii. I can see no possible benefit of adopting that statement compared to others to a university then the fact it includes these vague caveats.

b. It is also worthy of note that in 2019 the UCU submitted to the UNESCO that the UK had not done enough to secure academic freedom. Although I cannot find reference to the outcome, I would argue that taking the opportunity to align with the correct definition would be ideal.

14. Arguably f reedom to criticise the institution was implicit in the current law

a. There has been a deviation from this principle over time , very possibly because the Chicago statement has worked as a n Overton window. That the act does not explicitly state this freedom is one of the many reasons I have heard that it is not included.

i. However s ee both "great battle" and Nottingham two sections below

ii. Is part of the UNESCO declaration

iii. Was supported in principle by ECHR as per comments upon amendment

iv. N o expertise clause

v. The connection between academic freedom (rather than merely freedom of speech) and economic strength of our universities is far less abstract

1. It’s not merely a case of aligning our laws with the ECHR it’s a case of understanding their reasons and how not following them would disadvantage us.

vi. Despite this and the fact that it is included our grievance procedure as the "UNESCO definition", our registrar declined to include it.

1. It therefore seems to me apparent explicitly stating this right and duty will create a backstop that will prevent another committee having to figure out what happened in another 30 years.


15. The only way to preserve academic freedom on pure academic research is that the protections and decisions related to those protections are also protected by the same principles.

a. There is an intersection between Nolan principles (which universities subscribe to) and academic freedom. Criticism of the institution ensures transparency

16. From the committee minutes it’s also expected that applications to the OfS are rare and a matter of last resort. This would not be realistically practical without some extension of academic freedom to criticism of the institution.

Case studies

The ‘great battle’ in Swansea (1992)

17. This was the by-line by Sir Michael Davies who was assigned by the lord president of the council to investigate "the fiercest dispute ever to shake a British University".

a. This places it after the education reform act of 1988 which enshrines our current definition of academic freedom but prior to the full removal of university visitor powers (and the UNESCO recommendation)

i. It is now the case there is no remit in anything even tangentially involving employment disputes which essentially removed this protection of academic freedom (and was besides only available to those with royal charters).

b. Copies of the report are difficult to find (though it maybe the case records of the privy council are available to the committee) but briefly

i. there were internal criticisms in regard to how a masters was run that became public

ii. It blew up

iii. Three individuals were suspended

iv. As it continued to escalate the university council requested intervention from the university visitor

v. Sir Michael Davies while criticising all sides for ill-considered language was of the opinion that the acts of the suspended individuals were protected by the 1988 act and recommended their re-instatement.

Nottingham two (2011)

18. In 2008 two individuals were reported to the police by the university of Nottingham due to possession of reading material downloaded from the US Justice Department. This conflict between prevent and this bill is no doubt already under examination.

19. In 2011, after a number of attempts to handle this internally, Rod Thornton published a paper evidencing that this and the subsequent issues with those two individuals were mishandled. Dr Thornton was subsequently suspended over a "breakdown in working relationships".

20. The underlying pretext of the situation is much the same as the Swansea 1992 case therefore, in that by criticising the institution and which had very obvious and clear reasons of integrity he was suspended for comments that might be defamatory.

a. I say might as no court of law has found them to be so and therefore the university could only define them as a breakdown in working relationships

21. A settlement was reached that allegedly included the statement ""for his part, Dr Thornton accepts that the article which he published on the BISA website in April 2011 contained a number of inaccuracies."

22. While perhaps this was true, a number of his statements were quite accurate, including how the internal reviews of the incident were handled. And with apologies to those individuals whose reputations were tarnished more than fairly, considering the denials and failures of the establishment that responsibility was not on Dr Thornton (and was probably fair comment).

23. For example one of the most incendiary allegations that one of those individuals was unfairly hobbled in their dissertation and this in turn prevented them from continuing to a PhD.

a. Although they were able to find another university to accept them, they might just as likely have not, and that would have been a further stain on us.

b. An internal review requested by them in 2014 (presumably after achieving their PhD elsewhere) found in that the marking procedure was not followed in their case and they received their well-earned merit.

24. Again the notability of this case is not so much the conflict between Prevent and academic freedom but the two very different endings of the cases, arguably because of the differing objectives of the decision makers.

a. Both are also notable as not being either controversial or partisan but criticisms that are in support of the establishments mission if not the establishment.

25. In regard to proposed sunset clauses, I make no comment on these, save to say that if meaningful academic freedom is returned to our institutions, which is so fundamental to university operations, it may be the case that all the masses and masses of other legislation universities are under be simplified instead.

26. In so far as contractual obligations between a university and an academic are needed they exist in the fulfilment of the agreed academic duties, not the restriction of academic pursuit. I find it unlikely that the law could be interpreted in such a way that a failure to fulfil agreed contractual duties and thereby the employer being justified in considering the contract invalidated could be judged as worthy of consideration for protection under the current wording of the bill.

27. In summary, although I have concerns in regard to it’s implementation and how the role of the OfS will be used I don’t see this bill to the cost of our autonomy so much as re-enfranchising individual autonomy and legitimising the basis of university autonomy. Providing the right to express views is enshrined in law.

I will end with one quote from the Davies Report

"The point is that neither the university of Wales nor the university college of Swansea is "a company" in the profit-making or any other sense. They are academic institutions. I believe this has not always been remembered in Swansea… in drawing that line, in my opinion the fact that it is an line to be drawn in a adult academic world and not a commercial jungle is of profound importance… the idea of imposing any sort of gag or restriction on an academic, additional to those of the law and their contracts, is anathema and virtually impossible to police or enforce"

September 2021


Prepared 17th September 2021