30 Sep 2019

Earlier this month, James Murray attended the Westminster Higher Education Forum’s policy conference on protecting research integrity in the UK.

Among the attendees were leading experts from a variety of organisations which support research or rely upon its output, including Parliament, Whitehall, universities, research institutes, learned societies and charities.

At the conference, there was detailed discussion around the current state of research culture and integrity in the UK, the minimum standards to which those involved in research should be held and how those standards should be disseminated to the research community. Below is extracted James’ contribution to the conference, which argues that insufficient attention has been given to the issue of how research integrity should be balanced with the law concerning academic freedom of speech in the UK.

There is a question, which was not addressed at the conference, as to whether the commitments in the consultation draft of Universities UK’s revised concordat to support research integrity (“Concordat”) strike the right balance with institutions’ legal obligations to uphold academic freedom of speech (“AFOS”). Controversies around AFOS have recently gained significant publicity, particularly in the social sciences and humanities, so this is a question which merits careful consideration.

By way of brief definition, AFOS is a fundamental pillar of academic freedom  and a subset of the general right to freedom of expression, in particular under Article 10 of the European Convention on Human Rights (“ECHR”). For most institutions, the starting point will be their governing charter / statutes. They enshrine the obligation 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” (see the Education Reform Act 1988).

Under English law, there are a variety of statutes which impact on AFOS – primarily the duty of academic institutions to take reasonably practicable steps to ensure freedom of speech within the law for their staff and students. On top of that, public bodies (including universities) are required to take into account the ECHR and its related case law. In essence, this establishes that AFOS (once properly activated – which would include an assessment of various factors, including research integrity) entitles an academic to the utmost protection under Article 10 ECHR, even in situations where the Article 10 rights of an ordinary citizen would otherwise be overridden by competing convention rights of another. However, AFOS is not an absolute right. Case law, notably the international jurisprudence, suggests that there are important limits to it.

Overall, AFOS is a powerful right for academics, the corollary of which is that there is a strong duty imposed on academic institutions not to transgress it, in particular when acting as employers of researchers. The international jurisprudence, in our view, does not appear to have received due consideration in the available guidance regarding freedom of expression on campus as published by key bodies such as Universities UK and the Equality and Human Rights Commission.

As far as the Concordat is concerned, commitment one recognises that “researchers must be able to exercise freedom in their academic choices, and must also accept responsibility for the decisions that they make” and commitment four states that “academic freedom is fundamental to the production of excellent research”. These statements do reflect the importance of AFOS and acknowledge the fact that there is a balance to be struck between it and research integrity, but could go further.

We do not want to suggest that the Concordat requires anything which per se interferes with institutions’ obligations to uphold AFOS and/or which dilutes a researcher’s obligation to comply with the expected standards for research ethics and integrity. However, the Concordat could be clearer on where certain lines are to be drawn.

Our suggestion would be for the Concordat to draw more explicit reference to the need for a balancing exercise in situations where there may potentially be tension between AFOS and satisfying the commitments of the Concordat. Further, we would call on Universities UK to publish a more comprehensive guidance note which fully takes into account the international jurisprudence and gives practical assistance to institutions seeking to navigate this tension, particularly when high profile complaints are made against academics whom they employ.

Find out more about the team: Advising the innovation economy on research ethics, integrity and commercial exploitation.

James Murray is an Associate in the multi-disciplinary higher education team at international law firm, Taylor Vinters LLP. The team advises a range of higher education providers, research institutes and learned societies. It specialises on issues including: academic freedom of speech issues; academic staff engagement and intellectual property; governance and regulation; and research ethics and integrity.