Historically, the concept of academic freedom can be said to originate from the view that universities and academics function as the ‘conscience and critic of society’, with a duty to speak out if necessary against politicians of the day. As such, the views of academics and students will sometimes collide with convention or prevailing political views or actions.
Higher education institutions in Wales are generally free to devise and deliver their programmes of study and research and to determine the level of study and assessment a student has to complete to be eligible for an award.
Broadly, academic freedom can be divided into two categories. An institution’s ability to decide what courses to teach to whom, and how and by whom the courses will be taught is referred to as institutional academic freedom. The protection of freedom of expression for the academic profession in its research is referred to as faculty academic freedom.
In the UK, the direct protection of academic freedom by law is fairly limited. There are various statutory provisions that touch upon freedom of speech (faculty academic freedom) and institutional academic freedom but none that amounts to a definitive statement on the meaning of either class of academic freedom.
The following provisions are relevant:
Education (No. 2) Act 1986
Section 43 of the Education (No. 2) Act 1986 (freedom of expression in universities, polytechnics and colleges) obliges the individuals and bodies of persons involved in the government of (amongst others) any institution within the higher education sector and any institution within the further education sector to:
“…take such steps as are reasonably practicable to ensure that academic freedom of speech within the law is secured for members, students and employees of the establishment and for visiting speakers….”
The governing bodies of such establishments are required to issue and keep up to date a code of practice setting out the procedures to be followed by members, students and employees in connection with the organisation of on-premises meetings and other activities and the conduct of persons in connection with such meetings and activities. Institutions remain free to deny members of the public access to hear a speaker but overall section 43 can be seen as a clear statutory recognition of the responsibility of universities to promote freedom of speech.
Education Reform Act 1988
Section 202 of the Education Reform Act 1988 (ERA 1988) established a new body called the University Commissioners. Sections 203 and 204 of ERA 1988 required the University Commissioners to harmonise the statutes of pre-1992 Royal Charter higher education institutions (rather than the statutory universities created in 1992 – see the section on Higher Education Institutions) in relation to the dismissal of members of academic staff and enabled the University Commissioners to modify the statutes of those universities where appropriate. Section 202(2)(a) provides that, in exercising their functions:
“…the Commissioners shall have regard to the need – 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…”.
The University Commissioners exercised their functions for a limited duration. Paragraph 3 of Schedule 11 to the Education Reform Act 1988 provided that the duties and powers of the University Commissioners would cease at the end of the period of 3 years beginning with the day on which section 202 came into force (29 July 1988). That 3 year period was subsequently extended to 8 years by order under paragraph 3 of Schedule 11 to the Education Reform Act 1988.
Further and Higher Education Act 1992
Section 68 of the Further and Higher Education Act 1992 relates to institutional academic freedom. Under section 68(1), the Welsh Ministers may make grants to the Higher Education Funding Council for Wales (HEFCW). The Welsh Ministers may attach terms and conditions to grants provided to HEFCW under that section, subject to the limitations set out in sections 68(2) and (3). Such conditions may not apply to individual institutions or be framed by reference to particular courses or programmes of research or criteria for the appointment of academic staff and the admission of students.
So, whilst the Welsh Ministers are able to rely upon their powers to attach terms and conditions to grant funding that they provide to HEFCW to promote general policy developments in higher education, the conditions imposed by the Welsh Ministers cannot be institution specific or directed at particular courses of study or research. In other words, the funding conditions cannot concern institutional academic freedom.
Higher Education (Wales) Act 2015
Section 48 of the Higher Education (Wales) Act 2015 places an obligation on HEFCW, when exercising their functions, to take into account the importance of protecting academic freedom including the freedom of institutions to:
(a) determine the contents of particular courses and the manner in which they are taught,
(b) determine the criteria for the admission of students and apply those criteria in particular cases, and
(c) determine the criteria for the selection and appointment of academic staff and to apply those criteria in particular cases.
Student Fees (Approved Plans) (Wales) Regulations 2011 (SI 2011/884)
The provisions relevant to academic freedom in the Student Fees (Approved Plans) (Wales) Regulations 2011 were made by the Welsh Ministers under section 34(4) of the Higher Education Act 2004 (HEA 2004), which provides that in determining whether to approve a proposed plan for charging tuition fees, HEFCW must exercise its functions in accordance with such regulations.
Regulation 6 of these Regulations provides (amongst other things) that in making any determination relating to the approval of a plan, HEFCW (designated as the ‘relevant authority’ in relation to Wales under Part 3 of HEA 2004 and the Higher Education Act 2004 (Relevant Authority) (Designation) (Wales) Regulations 2011 (SI 2011/658) –
“…must have regard to…the desirability of protecting academic freedom and in particular the freedom of institutions to determine-
(i) the contents of particular courses and the manner in which they are taught, supervised or assessed;
(ii) the criteria for the admission of students and to apply those criteria in particular cases…”.
Articles of government of higher education corporations
Section 125 of the Education Reform Act 1988 requires any institution run by a higher education corporation (a statutory corporation established under Part 2 of the Act) to be run in accordance with articles of government which are made by the corporation with the approval of the Privy Council.
Amongst other things, the articles of government determine the distribution of functions between the board of governors, the principal and the academic board and regulate the constitution and functions of committees. The articles may also make provision authorising the board of governors to make rules or bye-laws for the government and conduct of the institution with respect to the conduct of students and staff or either of them.
Articles approved by the Privy Council and which are currently in force provide for faculty academic freedom. The articles of government of higher education corporations in Wales (Cardiff Metropolitan University, University of South Wales and Glyndwr University) all require the board of governors to make rules relating to the conduct of staff (after consultation with staff). The articles also provide that, in making such rules, the governors are to:
“…have regard to the need to ensure that academic staff of the University are to 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 any privileges they may have at the University…”.
European Convention on Human Rights, article 10
The right of freedom of expression granted by the European Convention on Human Rights is not limited to freedom of speech and includes freedom to pursue research and freedom to publish.