Protection for Academic Freedom in the U.K.The Constitutional & Legal Situation in a

Comparative Context

Briefing Paper for the University and College Union

Main Report

by

Terence Karran

Completed 26th October 2016

Address for correspondenceTerence Karran

School of EducationUniversity of Lincoln

Brayford PoolLincoln

LN6 7TS

Tel.: 01522 886346

Email: tkarran@lincoln.ac.uk

Contents

1. Executive Summary...............................................................................................................1

2. Academic Freedom: a neglected right in the U.K.………………............................................2

3. The Four Pillars of Academic Freedom ……………...............................................................4

4. Constitutional Protection for Academic Freedom................................................................... 8

5. Legislative Protection for Substantive Elements: Teaching and Learning..............................9

6. Legislative Protection for Supportive Elements: Tenure and Governance............................12

7. The 1988 Education Reform Act………………………….......................................................16

8. International Protection for Academic Freedom……………..................................................19

9. Conclusion and Recommendations……….……………….....................................................25

10. Bibliography..............................................................................................................................28

i

“Without such freedom there would have been no Shakespeare,

no Goethe, no Newton, no Faraday, no Pasteur, and no Lister”.

(Albert Einstein, speech given at the Royal Albert Hall, 5th October 1933)

1 Executive SummaryIn sharp contrast with the other 27 EU nations, the constitutional protection for academic freedom (either directly, or indirectly via freedom of speech) in the UK is negligible, as is the legislative protection for the substantive (teaching and learning) and supportive (tenure and governance) elements of academic freedom. Additionally, the UK is similarly deficit in protecting academic freedom in line with international agreements of which it is a signatory, more especially UNESCO’s 1997 Recommendation concerning the Status of Higher-Education Teaching Personnel. Utilising the most comprehensive assessment of the constitutional and legal protection of academic freedom, the UK attains a score of 35%, which is less than the EU average (53%), and the second lowest among the 28 EU states. The possibility of remedying this deficiency is limited without widespread national constitutional reform, which is highly unlikely in the current political climate in the UK. Experience elsewhere suggests two possible options that might help ameliorate this situation. First, the creation of a document like the AAUP Statement on Academic Freedom, acceptance of which would be sought in all UK universities. Second, an appeal to UNESCO that the UK government is not meeting its obligations under the 1997 Recommendation of which the UK is a signatory state. This strategy was successfully adopted by the Dansk Magisterforening, the academic professional association in Denmark, and led to an independent expert evaluation of the legal protection for academic freedom, followed by a subsequent change in the law.

2 Academic Freedom: a neglected right in the UKMost teaching and research staff working in UK universities, if asked whether academic freedom was important to them, would answer in the affirmative. However, despite the apparent importance attached to the concept, very little academic research has been undertaken into the legal protection for academic freedom in the U.K. Over 50 years ago, Lord Chorley, the (then) Honorary General Secretary of the Association of University Teachers, commented: “On the narrow front of court decisions there is very little to be said on the subject, nor has much systematic attention been given to it on a political, sociological or even educational basis. Academic freedom is indeed taken for granted in the United Kingdom, and matters taken for granted are not much written about in a systematic way”.1 Although academic freedom is no longer taken for granted in the UK, the situation has not much improved since then. In fact, over the last 30 years, there have only been three major texts on academic freedom in the UK.2 Moreover, writing in 2002, McGuiness3 averred that while there were more than 1000 reported judicial decisions dealing with academic freedom in the USA,

1 R. Chorley, (1963) “Academic Freedom in the United Kingdom”, Law and Contemporary Problems, 28(3): 6472 E. Barendt (2010) Academic Freedom and the Law: A Comparative Study, Oxford and Oregon: Hart Publishing.K. McGuiness, (2002) The Concept of Academic Freedom, Lampeter: Edward Mellen Press.M. Tight, (1988) (ed.), Academic Freedom and Responsibility, Buckingham: SRHE/OU Press.3 K. McGuiness, (2002) The Concept of Academic Freedom, Lampeter: Edward Mellen Press, p. 4.

the comparable figure for the Commonwealth nations was 203, of which only 6 reported cases in the UK dealt with the subject. Similarly, Aby and Kuhn’s guide to the literature on academic freedom4 lists 470 entries, but of these the vast majority relate to the USA, only eight relate to the U.K. Sinder’s earlier, shorter bibliography5 of 180 academic freedom related publications lists only three relating to a British academic (Bertrand Russell), and only then because the City College of New York annulled his professorial appointment. Additionally Kaplin and Lee’s authoritative volume on The Law of Higher Education in the USA devotes 117 of its 9096 pages to a consideration of academic freedom (including discrete sections on general concepts and principles; academic freedom in teaching; academic freedom in research and publication; academic freedom in institutional affairs; academic freedom in private life; administrators’ authority regarding faculty academic freedom; protection of confidential academic information; academic freedom in religious colleges and universities), and 66 additional pages to a consideration of tenure. By contrast Farrington and Palfreyman’s 723 page The Law of Higher Education (which was designed to be a UK equivalent to Kaplin and Lee) covers academic freedom in just sixteen pages,7 and devotes less than five additional pages to discuss the abolition of tenure.Other academic researchers have remarked on the dearth of coverage of the subject of academic freedom within the UK context. Jasper, for example, reported that: “my research has yielded very little education litigation, with next to no cases involving tenure and related issues such as good cause”.8 Similarly, Beloff could find “only one English statutory provision which makes a specific reference to academic freedom”.9 Assessing the reasons for this apparent lucuna in the literature, Barendt proposes three possible explanations. First, he suggests that maybe “universities prefer … to settle claims brought by any academics … rather than contest them”; second, he suggests that maybe “universities … show such respect for the individual academic freedom of their staff that they rarely have cause for complaint” (a notion that Barendt describes as “too complacent”); third, he suggests that “there is no constitutional guarantee of academic or scientific freedom in the UK”.10 The high incidence of interest among legal counsels and scholars in the USA is a reflection of the fact that academic freedom in the USA has no direct protection in law (unlike, for example, in Finland, where academic freedom is specifically protected in the 2009 Universities Act), and has only indirect protection under the First Amendment of the US Constitution, passed in 1791, which protects the more general right of freedom of expression. Consequently, academics in the USA have had to repeatedly argue in the US Supreme Court (with varying degrees of success) that they should, under the aegis of freedom of speech, be granted a wider freedom than is afforded to the general public. As the use of this amendment to protect academic freedom has depended on the interpretations of the amendment by the Justices of the Supreme Court, which have varied over time, much of the literature on academic freedom in the USA centres on assessing the legal and moral validity of the changing interpretations of the concept made by the

4 S. Aby and J. Kuhn (2000) Academic Freedom: A Guide to the Literature, Westport, Connecticut: Greenwood Press.5 J. Sinder, (1990) “Academic Freedom: A Bibliography”, Law and Contemporary Problems, 53(5): 381-3926 W. Kaplin, and B. Lee (2006) The Law of Higher Education Vol. 1 (4th Edition), San Francisco: Jossey-Bass, p. 605-722.7 D. Farrington, and D. Palfreyman, (2012) The Law of Higher Education (2nd Edition), Oxford: Oxford University Press, p. 451-468.8 S. Jasper, (1990) “Britain’s Education Reform Act: a Lesson in Academic Freedom and Tenure”, Journal of College and University Law, 16(3): 4649 M. Beloff, (2010) “Academic Freedom – Rhetoric or Reality?”, Denning Law Journal, 22(1): 118.10 E. Barendt (2010) Academic Freedom and the Law: A Comparative Study, Oxford and Oregon: Hart Publishing, p. 74f.

Supreme Court. The impact of the constitution on academic freedom in the UK is considered in Section 4 below.However, there are two other reasons why there is much less case law on higher education than compared with the USA, and other EU states. First, with respect to the USA, it has a federal government system and so responsibility for the provision of education lies with the states, the situation is the same in Germany. Consequently, universities are subject to state law, unless the federal constitution is implicated (which is the case when considering the protection for academic freedom under the First Amendment right of freedom of speech). Hence, there are 50 state legislatures, each responsible for fifty different jurisdictions, and each possessing their own state-based body of case law. Thus the high number of legal cases concerning academic freedom in the USA results, in part, from its federal system. Second, until the 1988 Education Reform Act, most UK universities were immune from any legal challenge in the courts. Each of the pre-1992 universities were autonomous corporations established by Royal Charter, under which the final resolution of any internal dispute was within the jurisdiction of the University Visitor, whose decisions were immune from legal challenge. The role of the University Visitor was arcane for most academic staff, but the Visitor’s powers were considerable nevertheless. As Peiris details: “The visitor's jurisdiction is a general jurisdiction over all matters in dispute relating to the students of the foundation and the internal affairs and membership of the corporation. Since the visitatorial power is an incident of an eleemosynary corporation whose purpose is the distribution of the founder's bounty, his authority is confined to the province of the corporation's statutes and does not extend to matters governed by statutes of the realm, or by the common law”.11 Hence the reason that little had been written about case law involving Universities was that dispute jurisdiction was wholly the province of the Visitor, and could not be challenged externally. In essence, universities were legally autonomous entities. However this was altered by the 1988 Education Reform Act, Section 206 of which stated that: “The visitor of a qualifying institution shall not have jurisdiction in respect of any dispute relating to a member of the academic staff which concerns his appointment or employment or the termination of his appointment or employment”. Thus the 1988 Act not only removed tenure and but also reduced the legal autonomy of universities. In sum, the major reason why there has been so little consideration or debate, among by academics and lawyers alike, of the legal protection for academic freedom in the UK, is that there is no protection for academic freedom in the constitution, either via direct mention of the concept, or indirectly under freedom of speech, while the relevant h.e. legislation is so sparse, that there is very little to debate. Davies makes the point that: “the legal protections for academic freedom in the UK are minimal”,12 exactly how minimal will be shown in this paper. Within EU universities, academic freedom is protected indirectly via constitutional freedom of speech (and often directly in the constitution) and in legislation; in US academia, “academic freedom is a contested concept”13 as it has only indirect constitutional protection. In contrast to both the US and the EU, in the UK higher education sector the right of academic freedom is a neglected, rather than a protected or contested, concept, and has been largely ignored by individual academics (most of whom have scant knowledge of the concept), universities (although most pay lip service by having an academic freedom institutional statement, owing to the lack of a UK universities’ act, these vary considerably in terms of length, comprehensiveness and accuracy) and government ministers and departments (who have

11 G. Peiris, (1987) “Visitatorial Jurisdiction: The Changing Outlook On An Exclusive Regime”, Anglo-American Law Review, 376(4): 381 12 M. Davies, (2015) “Academic freedom: a lawyer’s perspective”, Higher Education, 70(6): 987.13 S. Fish, (2014) Versions of Academic Freedom: From Professionalism to Revolution, Chicago: University of Chicago Press, p. 142.

viewed academic freedom as an impediment to the marketization of UK university functions). Hence, where there is negligible legislation, and therefore muted, if not nonexistent, debate, as Barnett observed: “In such an environment academic freedom is not taken away; rather, the opportunities for its realisation are reduced”.14

To provide a comparative context for the situation concerning the legal protection for academic freedom in the UK, data from the other EU states will be used, for the following reasons. First, the genesis of the contemporary research university, of which academic freedom is an integral part, took place in Europe. As Goldstein relates, “the modern development of the doctrine of academic freedom is largely derived from the nineteenth century German concepts of Lehrfreiheit and Lernfreiheit”,15 which are associated with the reforms instituted by Wilhelm von Humboldt at Berlin University. Although there are some exceptions (the University of Salamanca was very important in the development of the Spanish university model), the majority of the EU’s universities followed either the model laid down at the University of Paris, or that of the Humboldtian Berlin University. As Sanz and Bergan point out, the European heritage of universities is complex and multi-facetted, involving “the principles of academic autonomy, intellectual curiosity, the freedom to teach, pursue research and publish its results and rigorous standards of peer review ... (but also) ... fundamental societal values such as participation, community and equal opportunity”.16 Secondly, the histories both of the EU states and their universities have been closely interwoven, for example, scholars escaping the Great Dispersion from the University of Paris in 1229 helped to make up the contingent at Oxford; similarly, repression in the universities in Nazi Germany in the 1930’s led to an exodus of scholars, many of whom went to the UK or the USA. For these reasons, when examining the legal protection for academic freedom in the UK, comparisons are more relevant with respect to the EU states than with (for example) the USA, Russia, India, etc.

3 The Four Pillars of Academic Freedom17

Accurately, but unhelpfully, Altbach relates that “Academic freedom seems a simple concept, and in essence it is, but it is also difficult to define”, but nevertheless agrees that “academic freedom needs a universal definition … (as) the lack of agreement on the nature of academic freedom makes a common understanding and unified action difficult”.18 Eustace makes the telling point that “there is a tendency, natural enough, to speak of any lack of constraint on an academic related activity as an academic freedom. So the argument may conflate a wide range of concepts”.19 However, this problem has been compounded by academics themselves – when the limits of academic freedom are imprecise, it is more difficult for those accused of infringing academic freedom to successfully plead their innocence. Consequently, as Manan points out “there are professors who used academic freedom as a weapon to defend themselves from their performance being evaluated by the academic community”.20

14 R. Barnett, (1997) Higher Education: A Critical Business, Buckingham: SRHE/Open University Press, p. 53.15 S. Goldstein, (1976) “The Asserted Constitutional Right of Public School Teachers to Determine What They Teach”, University of Pennsylvania Law Review 124(6): 1293.16 N. Sanz, and S. Bergan, (2006) “Introduction: a word from the editors”, in N. Sanz and S. Bergan (eds.) The Heritage of European universities, Strabourg: Council of Europe, p. 16.17 For an in-depth description of these four constituent elements see T. Karran, (2009a) “Academic Freedom in Europe: Time for a Magna Charta”?, Higher Education Policy, 22(2), 170-185.18 P. Altbach, (2001) “Academic Freedom: International Realities and Challenges”, Higher Education, 41(1/2): 20619 R. Eustace, (1989) “Freedom for Academics”, Higher Education Quarterly, 43(3): 217.20 W. Manan, (2000) “Academic Freedom: Ethical Implications and Civic Responsibilities”, in G. Neave (ed.) The Universities’ Responsibilities to Society: International Perspectives, Kidlington: Elsevier Science, p. 255.

The reverse was probably true in the UK where, although academic freedom was usually written into university statutes, the absence of any agreed definition in legislation allowed the Thatcher government to remove tenure, thereby irreparably weakening academic freedom.In terms of both definition and every day practicalities, academic freedom is clearly part of a wider set of complementary human rights, with an evident link between academic freedom and freedom of speech: as Connolly observes, “academic freedom is a kind of cousin of freedom of speech”.21 However as Olivas rightly points out, “the concepts of free speech and academic freedom are symmetrical and overlapping, not synonymous”.22 Thus, the presence of freedom of speech does not guarantee academic freedom, but makes its protection more likely. Freedom of speech is a generic freedom granted to all, to express their opinions and beliefs by whatever method they deem appropriate, on any subject that they may choose, to all other people, but for no particular purpose. Academic freedom, by contrast, is a professional freedom granted to a few, chosen on the basis of their professional competence, to firstly: express their informed opinions only on subjects in which they have accredited expertise, just to a group of individuals chosen on the basis of academic criteria, in order to educate them; and secondly to undertake research to create new knowledge, freely disseminated to their students and the wider academic community. Irrespective as to whether constitutional or legal protection for freedom of speech might exist in the UK (and it does not), experience in the USA suggests that it would be insufficient to fully protect academic freedom.Whilst acknowledging that “there is little consensus between parties as to what academic freedom actually means … the concept is open to a wide range of interpretations and has been used at time to support conflicting causes and positions”,23 most academic experts in the field would concur that academic freedom comprises two substantive and two supportive, elements. The substantive elements are firstly, freedom to teach. This freedom will normally include some (may be all) of the following: freedom to determine what shall be taught (course content); freedom to determine how it shall be taught (pedagogy); freedom to determine who shall teach (via transparent selection procedures); freedom to determine whom shall be taught (the right to determine and enforce entry standards); freedom to determine how students’ progress shall be evaluated (assessment methods); freedom to determine whether students shall progress (via marking criteria and grade determination). Secondly, freedom to research, and as with teaching this element has associated liberties which will include: freedom to determine what shall be researched; freedom to determine the method of research; freedom to determine the purpose of their research (and thereby refuse to undertake research considered unethical); freedom to determine the avenues and modes (conference presentations, journal articles) of disseminating research findings to one’s peers, and the wider world. These two substantive elements are buttressed and sustained by two supportive elements: self-governance and tenure. Self-governance consists of the rights: to voice an opinion on the running of the university; to participate in decision-making within the university; to be able to appoint people to, and dismiss them from, positions of managerial authority within the university. Tenure comprises the right to some form of job security within the university, via an agreed procedure involving a peer-reviewed assessment of academic accomplishments, following the successful completion of a probationary period of employment. It also includes the ability to remove tenure from staff who fail to meet minimum levels of competence or to uphold professional standards of conduct. With respect to the granting of tenure, it is

21 J. Connolly, (2000) “The academy’s freedom, the academy’s burden”, Thought & Action 16(1): 71.22 M. Olivas, (1993) “Reflections of professorial academic freedom: Second thoughts on the third ‘essential freedom’”, Stanford Law Review, 45(6): 1838.23 G. Åkerlind, and C. Kayrooz, (2003) “Understanding academic freedom: The views of social scientists”, Higher Research and Development, 22(3): 328.

incumbent on the probationer to demonstrate competence, while for the removal of tenure the university needs to show due cause.There is a further element that is worthy of consideration, that is the distinction between individual and institutional autonomy, as these concepts have particular resonance within the UK context. Individual autonomy and institutional autonomy are often conflated under the heading of “academic freedom”. Indeed Rabban has noted that academic freedom, has been used to refer to “both the freedom of the academy to pursue its ends without interference from the government . . . and the freedom of the individual teacher (or in some versions - indeed in most cases - the student)”.24 Although these two concepts are linked, they are different. Wolff’s study makes this distinction explicit viz. “academic freedom is the privilege individual academics may claim as the freedom to question and test received wisdom, to put forward new ideas and controversial or unpopular opinions without placing themselves in jeopardy of losing the jobs or privileges they may have at their institutions. Academic autonomy applies to the institution. It may be defined as the right of academic institutions to decide freely and independently how to perform their tasks”.25 The link between individual and institutional autonomy originally derived from the process of academic governance within the stadium generale of the community of scholars. Hence the granting of individual academic autonomy enabled scholars to participate directly in academic governance, and thereby have a tangible input into institutional autonomy by, for example, electing, from amidst their ranks, Professors, Deans, and the Rector – who were considered primus inter pares, and not primus supra pares. This right of self governance was crucial in the first medieval universities like Bologna, in which the civil authorities made all significant university decisions as they paid university salaries; while the right to nominate the Rector lay with the students. As necessary, to avoid repeated attempts at external control, the scholars (acting individually, and as a body) would democratically decide, en masse, to decamp to another city, or even, another country. Hence in 1209, after disputes between students and townsfolk, academics at Oxford fled from the violence to Cambridge, to found a university there. In such institutions, provided that the opinions of academics were dominant in the process of institutional governance, their individual autonomy acted so as to maintain and legitimate institutional autonomy. Such governance mechanisms were the norm in UK universities, at least until the publication of the Robbins Report in 1963 which acknowledged that:

Freedom of institutions as well as individual freedom is an essential constituent of a free society and the tradition of academic freedom in this country has deep roots in the whole history of our people. We are convinced also that such freedom is a necessary condition of the highest efficiency and the proper progress of academic institutions, and that encroachments upon their liberty, in the supposed interests of greater efficiency, would in fact diminish their efficiency and stultify their development.26

However, as Neave relates “the expansion of higher education contributed powerfully to redefining the nature of academic autonomy. From the latter parts of the 1960s established models, the origins of which could be traced back over the previous century and a half, were

24 D. Rabban, (2001) “Academic Freedom, Individual or Institutional?”, Academe 87(6): 17.25 K. Wolff, (2000) “Academic Freedom and University Autonomy”, in G. Neave (ed) The Universities’ Responsibilities to Society: International Perspectives, Oxford: Elsevier Science, p. 198.26 L. Robbins, (1963) Higher Education Report of the Committee appointed by the Prime Minister under the Chairmanship of Lord Robbins 1961–1963, (Cmnd. 2154), London: HMSO, p. 228f.

revised”.27 This process has been documented in the UK by Griffith,28 among others, who cites two key points from the Jarratt Report viz.: “We stress that in our view universities are first and foremost corporate enterprises to which subsidiary units and individual academics are responsible and accountable”, “The tradition of Vice Chancellors being scholars first and acting as a chairman of the Senate carrying out its will, rather than leading it strongly, is changing”.29 Neave further demonstrates that similar policies in other European states in the 1960s and 1970s created a situation in which “autonomy can be exercised only on condition that the individual institute or department fulfills national or establishment norms which are continually to be renegotiated in the light of public policy”.30 Consequently, under the misleading aegis of academic freedom, national and European governments and NGOs have called for greater institutional autonomy for universities, for example, the EUA’s Prague Declaration stated that: “Universities need strengthened autonomy to better serve society and specifically to ensure favourable regulatory frameworks which allow university leaders to design internal structures efficiently, select and train staff, shape academic programmes and use financial resources, all of these in line with their specific institutional missions and profiles”.31

In statements such as the Prague Declaration, it is evident that the term ‘universities’ comprises a handy and impersonal synecdoche, thereby conveniently glossing over the fact that they advocate greater power for university Vice Chancellors, and consequently less academic freedom for staff. Stensaker and Vabø make the point that: “increasing autonomy for universities mean[s] that institutional leadership is given greater autonomy in their management of academic, organisational and financial issues. More autonomy for leadership does not necessarily mean more personal autonomy for academic staff”.32 Consequently, in the UK, Tapper and Salter describe how “university autonomy has been reconstituted while donnish domination has declined. In the process, the link between institutional and individual autonomy … has been broken”.33 Similarly, Piironen, applying a transnational focus to university autonomy, concluded that: “the idea of university autonomy is clearly conceptualized in a different manner today than two decades ago. … Autonomy is increasingly seen as the managerial property of the university leadership, and not as the property of the entire academic community”.34 This tendency to use pleas for greater institutional autonomy as a rationale for greater managerialism in universities is particularly marked in the UK. In this regard Henkel notes key differences in perceptions of the concept: “In Anglo-Saxon contexts, the single term ‘academic autonomy’ incorporates two distinct but connected ideas: individual academic freedom, and university autonomy or the right to institutional self-governance. … In other contexts, such as the Humboldtian system, this duality is absent; the protection by the

27 G. Neave, (1988) “On Being Economical with University Autonomy: Being an Account of the Retrospective Joys of a Written Constitution”, in Malcolm Tight, (ed.) Academic Freedom and Responsibility, Buckingham: SRHE/Open University Press, p. 39.28 J. Griffith, (1990) “The Education Reform Act: abolishing the independent status of the universities”, Education and the Law, 2(3): 97-108.29 CVCP, (1985) Report of the Steering Committee for Efficiency Studies in Universities (‘The Jarratt Report’), London: CVCP, p. 22, 26. 30 G. Neave, (1988) “On Being Economical with University Autonomy: Being an Account of the Retrospective Joys of a Written Constitution”, in Malcolm Tight, (ed.) Academic Freedom and Responsibility, Buckingham: SRHE/Open University Press, p. 46.31 European Universities Association, (2009) Prague Declaration: European Universities – Looking Forward with Confidence, Brussels: EUA.32 B. Stensaker, and A. Vabø, (2013) “Re-inventing Shared Governance: Implications for Organisational Culture and Institutional Leadership”, Higher Education Quarterly, 67(3): 261.33 R. Tapper, and B. Salter, (1995) “The changing idea of university autonomy”, Studies in Higher Education, 20(1): 70.34 O. Piironen, (2013) “The Transnational Idea of University Autonomy and the Reform of the Finnish Universities Act”, Higher Education Policy, 26(1): 142.

state of the academic freedom of those appointed professors or chair-holders (who essentially are the university) is central”.35 Furthermore, as Jasper rightly observes: “The danger in treating institutional autonomy as academic freedom lies in the fact that the freedom of the individual academic may become submerged into, or be seen as irrelevant compared with, the freedom of the university”.36 Institutional autonomy can help secure individual academic freedom - as Baredt points out “free universities are much more likely to allow and indeed encourage their staff to exercise academic freedom, because they appreciate its essential role in discharging their responsibility to teach students to think for themselves and to advance knowledge”.37 However, without shared governance, institutional autonomy may easily lead to managerial tyranny. Consequently, when (as in the UK) the link between individual and institutional autonomy is lost, as Watson notes “Academics may find themselves fighting not with their university against external encroachment, but against their university as a direct threat to aspects of their academic freedom”38 (original author’s emphasis).

4 Constitutional Protection for Academic Freedom In legal terms, constitutions are the supreme authority (the “fountainhead of rights”) with respect to the canon of civil and criminal law of individual nation states. For example, in the USA, all appeals in law that go to the Supreme Court, acting as the highest court in the land, do so because the Supreme Court is the final interpreter of federal constitutional law, and ultimate arbiter as to the meaning of the Constitution itself. The situation with respect to the constitutional protection for academic freedom in the UK differs from both the USA and the rest of the European Union nations. The UK does not have a written constitution which could provide protection for freedom of speech, and thereby indirectly protect academic freedom, as occurs in the USA. The UK has what is referred to as an “unwritten constitution”, in which the system of governance is described in, and constrained by, a disparate set of documents and “usual practices”.39 The sources of the UK’s unwritten constitution can be found in statute law (i.e. law set down by the legislative bodies of the Houses of Parliament); common law (i.e. case law developed by the decisions in individual cases made by judges, and courts, when giving decisions that have precedential effects); conventions (i.e. normal ways of doing things – it is now the convention that the Prime Minister must be a member of the House of Commons); authoritative works (i.e. books that have affected interpretations of the way in which constitutional processes operate, the leading example in the British constitution is probably A.V. Dicey’s Law of the Constitution); and external agreements (i.e. the European Convention on Human Rights). This means that there is no single ultimate and unequivocal document of reference with respect individual rights to which an appeal can be made with respect to academic freedom. Hence, for example, if an academic was removed from his post, without due cause, it would not be possible for him to argue that the use of the Education Reform Act in this way contravened his right to academic freedom (or freedom of expression) under the Constitution (as there is no Constitution).The unusualness of the British case can be gleaned from the fact that the UK is one of only three western democracies not to have a written constitution; the others are Israel and New Zealand. Although it is often claimed that the 1689 Bill of Rights protects freedom of speech in

35 M. Henkel, (2007) “Can academic autonomy survive in the knowledge society? A perspective from Britain”, Higher Education Research & Development, 26(1): 88.36 S. Jasper, (1990) “Britain’s Education Reform Act: A Lesson in Academic Freedom and Tenure”, Journal of College and University Law, 16(3): 453.37 E. Barendt (2010) Academic Freedom and the Law: A Comparative Study, Oxford and Oregon: Hart Publishing, p. 67.38 M. Davies, (2015) “Academic freedom: a lawyer’s perspective”, Higher Education, 70(6): 990.39 A. Cammisa, and P. Manuel, (2014) The Path of American Public Policy: Comparative Perspectives, Lanham: Lexington Books, p. 58f.

the UK, the Bill actually provides protection for freedom of speech within Parliament and has no bearing on freedom of speech outside the Houses of Commons and Lords. To assess the constitutional protection for academic freedom in the UK, when compared with other members of the EU, constitutional data from all the 28 states was appraised in order to check first, whether there was any indirect protection for academic freedom, via protection of freedom of speech or expression; second, whether there was any direct protection for academic freedom in the constitution. The results are shown in Table 1 in the Appendix.As can be seen from the table, unlike the UK, and without exception, all the other 27 EU states have a written constitution (usually expressed in one document), all of which contain some form of protection for freedom of speech and/or expression (to which an appeal from a lower court could be made, in respect of academic freedom cases). Moreover, in addition to providing indirect protection for academic freedom via protection for freedom of speech, as Table 1 shows, the constitutions of twenty of the European Union nations also provide some form of direct protection for academic freedom. For example Article 20 of the Constitution of Spain states explicitly “The following rights are recognised and protected: c) the right to academic freedom”. Similarly Article 16.6 of the Greece constitution protects the academic tenure of professors, viz.: “Professors of university level institutions shall not be dismissed prior to the lawful termination of their term of service, except in the cases of the substantive conditions provided by article 88 paragraph 4 and following a decision by a council constituted in its majority of highest judicial functionaries, as specified by law”. The constitutions of other EU nations don’t always refer to academic freedom as explicitly, but the majority nevertheless provides some guarantee for the substantive elements of academic freedom, the Constitution of Hungary, for example, ensures: “the freedom of learning for the acquisition of the highest possible level of knowledge, and, within the framework laid down in an Act, the freedom of teaching”. In sum, it can be seen that the constitutional protection for academic freedom in the UK, either directly or indirectly, is non-existent (as there is no written constitution) and in marked distinction with the other EU states in which constitutional protection both for freedom of speech and academic freedom is the norm, rather than the exception.

5 Legislative Protection for Substantive Elements: Teaching and LearningAs was shown in Table 1, all the EU states have protection for freedom of speech in their constitutional documents (with the exception of the UK), and the majority also have some form of (indirect or direct) constitutional protection for academic freedom. However, as well as providing protection for academic freedom within their constitutions (which is frequently couched in general terms), most of the EU states have specific h.e. laws that provide detailed information on how their universities are to be run – for example the Finnish Universities Law of 2009 has 93 sections covering (inter alia) mission; institutional autonomy; the university community; legal capacity of universities; freedom of research; arts and teaching; degrees and the degree structure; languages of instruction; organs of a university; board of the public university; appointment composition; functions and terms of office of the university board; election; powers and duty of care of the rector of a university; composition; functions and powers of the collegiate body of a university; university regulations and rules; administrative procedure and confidentiality; employment relations of the personnel; duties; appointment and title of professor; liability under criminal law. Such laws usually contain an explicit reference to academic freedom. In Ireland, for example, the 1997 Universities Act states: “A member of the academic staff of a university shall have the freedom, within the law, in his or her teaching, research and any other activities either in or outside the university, to question and test received wisdom, to put forward new ideas and to state controversial or unpopular opinions”. The only legal protection for academic freedom in the UK higher education sector is provided not in a specific and comprehensive h.e. or universities act [like those in Finland (12,384

words), Ireland (16,274), or Spain (25,217)] but in a subordinate section of the 1988 Education Reform Act, entitled “Miscellaneous and General”, and which states:

There shall be a body of Commissioners known as the University Commissioners who shall exercise, … the functions assigned to them by those sections.(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;

(b) to enable qualifying institutions to provide education, promote learning and engage in research efficiently and economically; and

(c) to apply the principles of justice and fairness.The impact of 1988 Education Reform Act on academic freedom is paramount, but there have been other (albeit, lesser important) legislative acts. For example, the Higher Education Act 2004 that introduced variable tuition fees, raised concerns that fees might dissuade potential students from entering h.e. Consequently, the Act established a Director of Fair Access to Higher Education with the power to prevent a university charging fees above £1,200 if it could not satisfy the regulator that it would make adequate provision for widening access and encouraging participation. In respect to the duties of the Director, Section 32(2) of the Act states:

(2) In the performance of his functions under this Part, the Director has a duty to protect academic freedom including, in particular, the freedom of institutions— (i) to determine the contents of particular courses and the manner in which they are

taught, supervised or assessed; and(ii) to determine the criteria for the admission of students and apply those criteria in

particular cases.(iii) The Director must, in the performance of his functions under this Part, have

regard to any guidance given to him by the Secretary of State.Birtwistle sought clarification of both the power of the Director, and the guidance proffered by the Secretary of State, from the Office for Fair Access, and was advised by the (then) Department of Education and Science: “‘section 32(2) ... stands in its own right. There is no need (or power to make) corresponding regulations. ... The Act itself prevents the Director’s remit straying into, say, universities’ admissions policy’”.40 Birtwistle concluded that the inclusion of academic freedom in the Director’s duties is inadvertent.However, the Higher Education Act 2004 did clarify the situation with respect to the powers of the University Visitor, as established under the 1988 Education Reform Act. In Section 46 of Part V (Miscellaneous and General), the Higher Education Act states:

(1) The visitor of a qualifying institution has no jurisdiction in respect of—(a) any dispute relating to a member of staff which concerns his appointment or

employment or the termination of his appointment or employment,(b) any other dispute between a member of staff and the qualifying institution in

respect of which proceedings could be brought before any court or tribunal, or(c) any dispute as to the application of the statutes or other internal laws of the

institution in relation to a matter falling within paragraph (a) or (b).

40 T. Birtwistle, (2004) “Academic freedom and complacency: the possible effects if ‘good men do nothing’”, Education and the Law, 16(4): 206f.

(2) In subsection (1) “qualifying institution” has the meaning given by section 11.(3) In determining whether a dispute falls within subsection (1)(b) it is to be assumed

that the visitor does not have jurisdiction to determine the dispute.(4) Section 206 of the Education Reform Act 1988 (c. 40) (which is superseded by

subsection (1)) shall cease to have effect.Thus any illusions about the possibility of residual powers for the University Visitor, after the 1988 Education Reform Act, were comprehensively dispelled by the new Act.To assess the legislative protection for academic freedom for teaching and research (the substantive elements) in the EU, copies of the relevant laws were sourced from each of the EU states. Gathering this data was difficult and time-consuming, although the implementation of the Bologna Process within the EU states has necessitated the translation of many h.e. legal instruments, some of the more arcane pieces of legislation in the more unfamiliar languages required recourse to online translation tools, followed by double-checking via secondary sources. The detailed results of this exercise are shown in Table 2.As can be seen, in two nations – Estonia and Malta – there is no protection for academic freedom for teaching and research in the national legislation, and in Malta there is also no protection for academic freedom in the Constitution. At the other end of the scale, in Spain the right to academic freedom is mentioned explicitly in the constitution, but additionally, the legislation gives discrete protection for the individual functions of teaching and research through separate provision, while also making generic statements, which further strengthen the legal protection for academic freedom. Similarly, Bulgaria and Slovakia offer specific protection for the different teaching and research activities in law, as well as some direct protection via their constitutions. Five nations offer discrete protection for academic freedom in teaching – for example the Czech Higher Education Act guarantees “freedom of teaching, in particular with regard to openness to different scientific and scholarly views, scientific and research methods and artistic movements”. Similarly, nine nations offer specific protection for research – for example the 2011 Law of National Education in Romania states that: “in higher education institutions the freedom of research is ensured in terms of setting the subjects, choosing the methods and procedures and capitalising results, in compliance with the law”. 24 of the EU nations offer some protection for academic freedom under law; sometimes the legal protection is both terse and generic (as, for example, in the Netherlands where the law merely states: “the institutions’ academic freedom is protected”), while other nations provide a more detailed account - the Universities Act in Ireland, for example, states that: “A member of the academic staff of a university shall have the freedom, within the law, in his or her teaching, research and any other activities either in or outside the university, to question and test received wisdom, to put forward new ideas and to state controversial or unpopular opinions and shall not be disadvantaged, or subject to less favourable treatment by the university, for the exercise of that freedom”. Belgium and Croatia are unusual, in that they offer some protection in law, but each refers back to the protection for academic freedom in their Constitutions, as it is a superior legal instrument. Sweden is similarly distinct, in that it has no mention of academic freedom for teaching in either the Constitution or the law, but provides legal protection for research. The UK legislation is aberrant when compared to the other EU nations. First, the legal protection for academic freedom in the UK does not arise as a result of a specific law that relates to the higher education function in general, or universities in particular. In fact, the section of the Education Reform Act which relates to academic freedom appears in Part IV under the heading of “Miscellaneous and General” of the Act, the rest of which deals primarily with schools and the National Curriculum (Part I), the incorporation of higher education institutions maintained by local education authorities (Part II), and the abolition of the Inner

London Education Authority (Part III). Second, under the 1988 Education Reform Act the legal protection for academic freedom takes the form of a right to a retrospective review for remedial redress by individuals. Hence the University Commissioners created under the Act are not incessantly vigilant in providing ongoing oversight of the continuing health of academic freedom for all teaching and research staff employed in British universities; rather, they will only act when an individual academic claims that s/he has been made redundant on grounds other than “just cause”. As was considered earlier, academic freedom is a professional freedom, yet the Commissioners appointed under the 1988 Act would neither enable nor guarantee freedom for all other (non-aggrieved) members of the academic profession, in their current and future scholarly activities of research and teaching. Being guaranteed the freedom to act unimpeded in the workplace as an academic in the here and now (as occurs under the Irish legislation), is clearly qualitatively different from being allowed to exercise a limited freedom constrained by the fear of possible redundancy, even if redress may subsequently be granted for a past denial of liberty. More importantly, today, even if an academic did believe that s/he had been made redundant without “just cause”, it would not be possible to request the Commissioners to intervene. Once established for three years following the 1988 ERA, the duties and powers of the Commissioners were confirmed annually thereafter by means of a statutory instrument; the last such was signed by Gillian Shepard, Secretary of State for Education, in March 1995, continuing the Commissioners’ responsibilities until 1st April 1996 after which, as no further statutory instruments were signed, the Commissioners ceased to operate. In essence, the legal protection for academic freedom for teaching and learning in the UK is generally at a lower level than the majority of other EU nations, although not as low as occurs in Estonia and Malta, and possibly in Denmark and Sweden. Moreover, arguably, the demands of the UK government for research “impact” has further encroached on academic freedom – Watson makes the point that such demands have moved the position “from government attempts to control the research arena (arguably the aim of RAE2008) to the attempt to control research outputs”. 41 It is likely that the Teaching Excellence Framework, currently being implemented by Jo Johnson, the Minister of State Minister for Universities and Science, will impose similar constraints on the academic freedom to teach, as the REF has had on the freedom for research.

5 Legislative Protection for Supportive Elements: Tenure and GovernanceThe supportive elements for academic freedom (tenure and shared governance) are critical to ensuring that the substantive elements (freedom to teach and undertake research) may flourish. However, whereas the legal protection for the substantive elements is usually readily apparent in the legislation (for example, Bulgaria’s 1995 Higher Education Act states that “academic staff … shall have the right to freely conduct … scientific research and to publish the results”), the legislation surrounding the supportive elements is more complex, nuanced and varied. Hence, in some nations there may be only one decision-making body (e.g. Senate), and the legislation may state that all the members of this body have to be elected from, and by, the academic faculty. In others, there may be more than one body assigned to make decisions (e.g. Senate and the University Council) and the membership of these entities may be split between (for example) the academic staff, the administrative staff, the students, and external nominees (often from local business). Similarly with tenure, in some nations the situation is readily apparent, for example, no form of tenure exists in the UK, while in Spain Professors may apply for the status of Catedrático, which, in essence, provides them with

41 C. Watson, (2011) “Accountability, transparency, redundancy: academic identities in an era of ‘excellence’”, British Educational Research Journal, 37(6): 698.

tenure and the status of a civil servant. More usually, however, the attainment of tenured status varies considerably both between (and sometimes within) the EU states. In order to assess the legislative protection for these supportive elements, as before, the relevant legislative instruments were examined for each EU nation. Some caveats are necessary with respect to this analysis. First, information relating to these elements is rarely available in English, and hence some meaning may be lost in translation; second, the legislation provides the “bare bones” of the systems of tenure protection and governance, while their day to day operation may not always exactly reflect the legal framework. The first stage of this analysis identified the major elements in the legislation relating to governance and tenure. This was a protracted process, as the majority of legislative instruments in EU nations dealing with higher education are detailed and lengthy – the Ley Orgánica 4/2007 which deals with higher education in Spain, for example, is over 25,000 words long – the total volume of text thus identified was circa 55,000 words. Hence the second stage was to summarise the detailed legal instruments, in order to answer the following questions:1) What are the major governance bodies (Council, Board, Senate), how are they constituted,

and what are the roles of the academic staff in electing people to such bodies?2) Is tenure available to academic staff, if so under what conditions?The summary data in relation to the legal protection for these two supportive elements of academic freedom is given in Table 3. The full table is available on request.Shared governance has long been considered a vital element to securing academic freedom. For example the Association of American University Professors argues that “sound governance practice and the exercise of academic freedom are closely connected, if not inextricably linked”,42 and that “the faculty’s role in governance, is the foundation of academic freedom”.43 Similarly, Rochford has noted that “A traditional institutional protection for academic freedoms is through the tradition of participation by faculty members in academic governance”.44 Clearly legal protection for academic freedom for teaching and research is important, but unless academics can participate in governance, there is a strong chance that this freedom will not be fully realized. Similarly, if job security is not protected via tenure, then the presence of legal protection for academic freedom becomes irrelevant, as staff who believe that their academic freedom has been compromised can simply be removed from office by the university authorities.Although there are evident variations in the governance structure of universities in different states, analysis of the data on governance powers and structures in Table 3 reveals surprising similarities in the governance structures within universities in the EU. In all instances (apart from in the UK’s pre-1992 universities) national legislation specified precisely the composition, functions, and powers of the governance bodies in universities. In some nations, the composition of the governance was determined by local statutes, which made it difficult to assess which body exercised managerial dominance. However, in 18 of the 28 states, there were two governance structures – invariably one had broad based executive power (the University Board), while the other had a deliberative function in relation to academic matters, (Senate). In 11 cases, the academic staff were in a majority on Senate, but not on the Board. Hence there was a balance of power between between these elements, as Board decisions

42 Association of American University Professors, (1944) On the Relationship of Faculty Governance to Academic Freedom, Statement adopted by the Association’s Council, June 1994, p. 3 43 J. Scott, (1994) Chair of the AAUP's Committee on Academic Freedom and Tenure, quoted by Bowen, R., (March, 2005) in “For The Record: Born Free but in Chains: Academic Freedom and Rights of Governance”, Academe, 91(2): 119.44 F. Rochford, (2003) “Academic freedom as insubordination: the legalisation of the academy”, Education and the Law, 15(4): 252.

had to be ratified by Senate; additionally, in some instances this balance of power was tempered by the ability of Senate to choose (and dismiss) the Rector. In three nations, the academics wielded majority power on both bodies, while in four states, the academics were in the minority on both governance bodies. In nine nations there was only one governmental body, with the academics in the majority in six nations, and in the minority in three; finally in one nation there were three governing bodies, and the academic staff controlled only one. Analysis of this data in the UK context, reveals some similarities and differences. The pre-1992 institutions were established by royal charter, and hence their statutes, rather than national legislation define their internal governance structures. The normal governance model in pre-1992 UK universities is to have a University Council, on which academic staff are in the minority, and a Senate, on which academic staff are in the majority – very much like the model in other EU states. Until the mid-1980s, power was relatively evenly distributed between these bodies. However, the Jarratt Committee Report recommended that the role of the Council should change to enable them to “assert their responsibilities in governing their HEIs notably in respect of strategic plans to underpin academic decisions and structures which bring planning, resource allocation and accountability together into one corporate process linking academic, financial and physical planning”. The Jarratt Committee did not foresee any changes to the role of Senates, which were “to continue to play their essential role in co-ordinating and endorsing detailed academic work and as the main forum for generating an academic view and giving advice on broad issues to Council”.45 This shift in the role of Senates meant that they became passive advisory bodies, rather than active participants in policymaking. This shift from collegial decision-making to management has produced disputes between managers and governors, operating via the Council, and the academic community in Senate. Consequently, universities’ governing instruments, Statutes and Ordinances, etc. have become of great significance. The unequal power between these two bodies is in distinction to Universities elsewhere in the EU, in some of which the academic staff are in the majority, and in which the Senate (or its equivalent) plays a key role. For example, in Austria, the University Council elects the University Rector, but has to choose from a shortlist of three candidates nominated by the senate. Similarly, within the Czech Republic, the Senate approves the budget of the h.e.i., which is submitted by the Rector, and monitors the financial management of the h.e.i. and votes on proposals to nominate or dismiss the Rector. Such powers are not unusual in other EU states, but are largely unheard of within British academia. Tenure is separate from, but connected with, university governance, in that it guarantees staff involvement in governance. As McPherson and Schapiro make clear: “Faculty members with tenure will have more independence. Administrators need to rely more on persuasion and less on negative sanctions ... Tenure increases the ability of faculty collectively to shape institutional decisions, through their actions in departments, colleges, or the institution as a whole”.46 More importantly, most of the reported violations of academic freedom are of one academic by another. In a survey of over 5300 academics in the EU, the author found that 16% (nearly 1 in 6) of respondents reported being bullied (“mobbed”, “denigration, contempt, sarcasm”, “more teaching and more administrative work”) by colleagues. Assessing the importance of tenure in circumstances such as this, De George makes the point that: “By giving a large number of the faculty tenure ... they are in a position to defend the academic freedom not only of themselves but of all the non-tenured members of the institution, as well

45 CVCP, (1985) Report of the Steering Committee for Efficiency Studies in Universities (‘The Jarratt Report’), London: CVCP, p. 36.46 M. Mcpherson, and M. Schapiro, (1999) “Tenure Issues in Higher Education”, in Devlin. M.E. Montgomery, J.W. (eds.), Forum Strategy Series, Forum Futures 1999 Papers, Washington: Forum Publishing, p. 81.

as the academic freedom of faculty at other institutions”.47 Similarly Menand points out that “Academic freedom not only protects sociology professors from the interference of trustees and public officials in the exercise of their jobs as teachers and scholars; it protects them from physics professors as well”.48 The granting of tenure in UK universities was abolished by the 1988 Education Reform Act, and although it is possible (but highly unlikely) that there are still staff employed in UK universities, who were granted tenure before the act was passed, their number must be very small. Despite tenure’s demise in the UK, it is still largely intact in most of the other EU nations, albeit possessing different forms. All the EU states, except the UK, offer some form of legislative protection for employment security. However, it is noticeable that in many EU states tenure is now becoming harder to attain and keep. For example in Lithuania academic contracts are initially for five years, and are twice renewed before an indefinite contract is offered, so staff will need to have been employed for 15 years before tenure is possible; even then, tenured staff are still subject to five yearly evaluations, with the prospect of redundancy following a poor evaluation. A similar system (tenure after an initial five yearly contract with two reappointments) operates in Croatia, although once receiving tenure, academics acquire the status of public servants. Many EU nations (Austria, Germany, the Czech Republic, Denmark, Hungary, and Poland) offer tenured posts but require applicants to have a habilitation (post-doctoral lecturing qualification) as a pre-requisite for tenured professorial posts. Consequently, research staff in these nations who do not undertake teaching are often only offered fixed appointment posts. Tenure is still strong, however, in countries like France, in which staff can apply for a permanent position as Maître de Conférences, after earning their doctoral degree. Such a position is generally considered a permanent position as a civil servant, with all the ensuing advantages. To proceed beyond this, applicants are required to earn a habilitation de diriger des recherches, which corresponds to the habilitation in other higher education systems. Once applicants have attained the habilitation, they can apply for a full professorship. Following reforms initiated in the last decade some nations have altered the provision of tenure and the mode of governance. The 2009 Universities Act in Finland, for example, made universities corporate entities, and ended the system whereby professorial and other academic had contracts with the state (i.e. academics were civil servants), and inaugurated a new system in which academic staff were employed on contracts with their individual universities. At the same time the governance system was altered, and the power of Rector increased. This desire to give Finnish universities more “institutional autonomy”, which mirrored previous changes in education policies in the UK, has had major disruptive effects. In June 2015, the President of Aalto University Tuula Teeri was found guilty of violating the employment rights of a shop steward, who had been bullied, transferred to an inferior post and eventually sacked. In consequence, the university had to pay €100,000 in restitution. In September, 2016, following the unprecedented dismissal of 370 staff from the University of Helsinki (made possible following changes to the Universities Law in 2009), the national press reported that new students had experienced difficulties getting correct academic guidance, owing to the absence of qualified staff. In Finland, and elsewhere, universities that once had probation style tenure schemes, or a system based on habilitation, having now acquired additional employment and contractual powers (under the convenient soubriquet of “institutional autonomy”), are now starting to institute new career paths based on a system of “tenure track” positions (i.e. fixed-term contracts advertised with the prospect of a tenured, permanent, position at a higher level, subject to positive evaluation, but without renewed

47 R. De George, (2003) “Ethics, Academic Freedom and Academic Tenure”, Journal of Academic Ethics, 1(1): 18. 48 L. Menand, (1996) “The Limits of Academic Freedom”, in The Future of Academic Freedom, (ed.) Menand, L., Chicago: University of Chicago Press, p. 17.

advertising of and application for the next position), as are operated in universities in the USA. Sciewer and Jehle49 have identified “tenure track” systems in Belgium (KU Leuven), Finland (University of Helsinki), Germany (University of Freiburg, LMU Munich, University of Heidelberg), Italy (University of Milan), the Netherlands (Universities of Amsterdam, Leiden, Utrecht), and Sweden (University of Lund); it seems likely that such schemes will become more widespread in the future. Currently, academics in the universities of the EU states do have legally protected employment rights which are not enjoyed by their counterparts in the UK. However, changes to tenure protection in nations like Finland have taken place in recent years, and are likely to accelerate, with consequent deleterious effects on the employment rights of those concerned. Even if, as is likely, the employment contracts in nations like Italy and Sweden, move towards a “tenure-track” system like that used in the USA, nevertheless people on such contracts will enjoy greater employment rights than are available to their counterparts in the UK.

6 The 1988 Education Reform ActThe 1988 Education Reform Act is habitually cited within the academic literature as the key UK legislative instrument which protects academic freedom. In examining the impact of such legislation, Farrington and Palfreyman make the point that: “It is impossible to isolate legislation on higher education from the political and social context in which it is adopted and, most importantly, from other normative acts that affect the higher education sector”.50 As has been shown, the Act offers no on-going protection for the substantive or supportive elements of academic freedom, it only provides for the possibility of retrospective retribution for an abrogation of such freedoms. However, the evident differences between the legal protection in the UK, and that demonstrated in other nations, and the prominence attached to this Act, are such that a detailed examination of both the content and the context of Sections 202-206 of the 1988 Education Reform Act are warranted. In terms of the content, in introducing the Bill for its Second Reading on 1st December 1987, the (then) Secretary of State, Kenneth Baker, stated: “In the case of universities, the Government's policy is that newly appointed staff should no longer be given ‘tenure’, that is, special protection against dismissal on grounds of redundancy or financial exigency. The Bill provides (Clause 132) that staff currently in post who have tenure should retain it as long as they continue in their present appointments, but that those newly appointed or promoted to permanent posts after 20 November 1987 should no longer have this special protection”.51 The following month in his speech to the North of England Education Conference, although Baker had concentrated on announcing the new National Curriculum, he also asked whether “the universities accepted an obligation to give an account of their stewardship to their customers and the taxpaying public”.52 However, the government had said in July 1984 that it had a general intention to legislate on tenure, and had issued a consultation paper in December 1985. Indeed the 1985 Jarratt Report had noted that the previous Secretary of State for Education and Science, Sir Keith Joseph, was minded to remove tenure and had stated: “We have in mind no interference with existing contractual rights. We wish only to limit

49 H. Schiewer and C. Jehle, (2014) Tenure and Tenure Track at LERU Universities: Models for Attractive Research Careers in Europe, Leuven: LERU, p.1150 D. Farrington, and D. Palfreyman, (2012) The Law of Higher Education (2nd Edition), Oxford: Oxford University Press, p. 693.51 K. Baker, House of Commons. Debate 1st December 1987, Vol. 123, cc771-81. All subsequent House of Commons speeches reported here are from the same source.52 K. Baker, (1987) DES Press Release 11/87: Kenneth Baker’s speech to the North of England Education Conference, 9th January, London: DES

tenure that may be granted by contracts made after some specified future date”.53 Hence, ideas about removing tenure had been discussed at least two years before the removal of tenure was announced in the House of Commons, but nothing had been said about the impact this might have on academic freedom.Not surprisingly, most of the debate of the Second Reading of the Education Reform concentrated on the National Curriculum. However, Baker did announce that: “The Bill proposes that all universities should be able to appoint new permanent staff without offering them strict tenure. Independent commissioners will revise university charters to give effect to this and to safeguard academic freedom.” Despite the Minister’s reassurances, Jack Straw believed that “academic tenure is to be abolished and no safeguards for academic freedom are written into the Bill.” This view was endorsed from the Tory benches by the Conservative ex-PM Edward Heath, who complained that: “There has been inadequate consultation over the summer and the Bill was published only seven working days ago. Organisations, especially the universities, have written to hon. Members to say that they are incapable of providing criticism of the Bill because there has not been time to consider or discuss it”. Heath then went on to say that: “We all know what happens today to people who hold differing views from those held in Government circles. Academics can see quite clearly what will happen to them if they express their real views. … He [the minister] is connected with the universities and knows full well why academics have not spoken out about what is required of the universities. They are afraid that they will lose their jobs”. More directly, in relation to academic freedom, Derek Fatchett argued that: “It might also have been useful if the Bill had made some reference not just to academic tenure, but to academic freedom. This Government have talked about academic freedom in other contexts. Why does the Bill make no reference to it?”Similarly, Andrew Smith described the bill as “dangerous, draconian and wholly incompatible with the principles of academic freedom that all of us in the House should be pledged to uphold”. In response to Smith’s objections, the Minister of State, Angela Rumbold argued, somewhat perversely, “clause 131, which requires the commissioners to ensure that each university and college has proper procedures for applicants. The Bill also gives university employees recourse to the court, which they are now denied. In those ways, the Bill increases the protection of academic freedom rather than diminishing it”. It is evident that MPs had been anticipating much stronger legislative protection for academic freedom – indeed Maria Fyfe remarked: “I have been listening carefully, and waiting for the Minister to reach the topic of academic freedom. If I have understood her correctly, she has said that academic freedom will be protected through recourse to the courts. I do not think that that will satisfy the Committee of Vice Chancellors and Principals, which is very perturbed at the absence of a clause in the Bill to protect academic freedom. That was promised repeatedly by the Secretary of State before the publication of the Bill”. Rumbold’s response to Fyfe’s inquiry (that “The hon. Lady may not be aware that the statutes must be approved by the Privy Council. That is, and always has been, a great protection of academic freedom.”) is indicative of a complete lack of understanding of the function of university statutes, and how they protect academic freedom.Hence, it is evident that although promises had been made by the Minister, prior to the Act’s publication, to protect academic freedom, there were no provisions whatsoever in the bill to that effect. In consequence, the inclusion of articles in the bill to provide for protection of academic freedom fell to the unelected members of the House of Lords. Similar complaints were made regarding the government’s tardiness in addressing the issue, despite previous promises. Addressing the Committee Stage of the Bill on May 19th Lord Hatch noted: “as the bill reads the academic is not protected against his employer … the noble Baroness, Lady

53 CVCP, (1985) Report of the Steering Committee for Efficiency Studies in Universities (‘The Jarratt Report’), London: CVCP, p. 10.

Hooper, in November last year went on later to say that the Government recognised the relevance of academic freedom to the legislation that they would be bringing forward shortly to modify the tenure of academic staff; the relevant provisions would be framed so as to take the issue into account”.54 In response, Lord Beloff, one-time Gladstone Professor of Government and Public Administration at Oxford University, and a Conservative Peer, agreed that: “Many of us … find it very difficult to understand why after six months of discussion, representations from the universities and negotiations with the Committee of Vice-Chancellors and Principals it is still not possible, … for the Government to meet the unanimous wishes of the university community. … but it is commonly said in university circles that the difficulty has been in the inability of the Government's lawyers to define academic freedom and the belief that without such a definition it cannot appear in the Bill. If this is true, it seems to me to be most extraordinary”. Further promises by the Lord Chancellor for (yet more) discussions with the CVCP to clarify definitions of academic freedom failed to convince the Lords; indeed, in the penultimate speech of the debate, Lord Peston, an eminent Professor of Economics stated: “those of us who have been in academic life know full well what academic freedom is. … I simply do not believe … that it is impossible to define”. Consequently, a vote was taken, and the amendment to include the clause, “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” in the bill was passed. As the Minister, Kenneth Baker, had previously made reference to including some protection for academic freedom in the bill, and because it had only got through the House of Lords by being passed by Conservative peers, the government accepted the Lords’ amendment in the final version of the Act.The Finnish Universities Act, which changed the status of academics from civil servants to university employees, was passed in 2009, after a series of deliberative steps including a Thematic Review of Tertiary Education in Finland by the OECD in 2006, and a draft bill in 2007, which was subject to discussion and evaluation. The act states categorically: “The universities shall have freedom of research, art and teaching”. The importance of this act was such that the Ministry of Education and Culture commissioned an evaluation of the Universities Act in 2012. In contrast, an analysis of the Parliamentary procedure used to remove academic tenure in the UK reveals that the relevant clause was added in to the “Miscellaneous and General” section of a bill which did not deal primarily with higher education. Moreover, the inability, or unwillingness, of the government to define academic freedom, led to the protection of academic freedom being guaranteed by a clause hurredly drafted and passed in the unelected House of Lords, and largely against the government’s wishes. Hence, any suggestion that the intention of the Thatcher government in introducing the ERA was to strengthen universities and protect academic freedom, is manifestly false. Moreover, the relevant clauses protecting academic freedom were subsequently nullified in 1996 by the government’s failure to continue with the duties and powers of the University Commissioners by failing to sign the relevant statutory instrument.

7 International Protection for Academic FreedomAs has been shown, the central importance of academic freedom to universities has been recognised in the majority of the national constitutions and legislations of the individual E.U. countries. In addition to these national legal safeguards, protection also occurs at supra national level. Hence, the E.U. Charter of Fundamental Rights, which includes the declaration that “The arts and scientific research shall be free of constraint. Academic freedom shall be

54 Lord Hatch, House of Lords. Debate 19th May 1988, Vol. 497, cc433-86. All subsequent House of Lords speeches reported here are from the same source.

respected”55 was incorporated into the 2008 E.U. Revision Treaty.56 Similarly, at the Assembly debate on 30th June 2006, the 47 members of the Council of Europe approved a Recommendation on Academic Freedom and University Autonomy and exhorted the Council’s Committee of Ministers to “strengthen its work on academic freedom and university autonomy as a fundamental requirement of any democratic society”.57

However the most detailed such recommendation was issued in 1997 by UNESCO which affirmed that “the right to education, teaching and research can only be fully enjoyed in an atmosphere of academic freedom ... the open communication of findings, hypotheses and opinions lies at the very heart of higher education and provides the strongest guarantee of the accuracy and objectivity of scholarship and research”.58 The Recommendation concerning the Status of Higher-Education Teaching Personnel which was adopted by the UNESCO General Conference in November 1997, was the result of extensive consultation with academic and legal experts, NGOs including the International Labour Organisation, and with member states. The Recommendation is not a stand alone document but is well-embedded in other international regulations - as Beiter points out “in its preamble the Recommendation refers to article 26 of the Universal Declaration of Human Rights ... article 13(2)(c) of the International Covenant on Economic, Social and Cultural Rights, to the Convention against Discrimination in Education, (and) to the UNESCO/International Labour Organisation Recommendation concerning the status of teachers”.59 Subsequently UNESCO increased the responsibilities of the Committee of Experts on the Application of the Recommendation concerning Teaching Personnel (CEART) to include monitoring of the implementation of the 1997 Recommendation. Legal instruments such as the UNESCO Recommendation have the judicial status of “soft law” which, Hillgenberg advises, are often concluded “because the states involved do not want a full-fledged treaty which, in the event of non-fulfillment, would result in a breach of international law”.60 However the Director-General of UNESCO has argued that in UNESCO’s case: “Although recommendations are not binding on Member States, in the same way as conventions that have been ratified by them, it is the underlying idea of common solutions to common problems that usually leads to the incorporation of their principles and precepts into national legislation”.61

The UNESCO Recommendation was the first attempt to provide a detailed description of the necessary parameters for academic freedom, seek international support for their implementation, and provide a mode of redress (via reports to the CEART). The UNESCO Recommendation specifies the following major critical elements which are considered crucial to academic freedom:

55 European Union (2000) Charter of Fundamental Rights of the European Union, 18th December 2000, p. 11.56 European Union (2008) Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union Official Journal of the European Union Volume 51, 2008/C 115/01, Luxembourg: Office for Official Publications of the E.U., p. 337.57 Council of Europe (2006) Recommendation 1762: Academic Freedom and University Autonomy, 30th June 2006.58 UNESCO (1997) Records of the General Conference, Twenty-ninth Session Paris, 21 October to 12 November 1997, Volume 1 Resolutions, Paris: UNESCO, p. 26.59 K. Beiter, (2005) The Protection of the Right to Education by International Law, Leiden/Boston: Martinus Nijhoff Publishers, p. 278.60 H. Hillgenberg, (1999) “A Fresh Look at Soft Law”, European Journal of International Law, 10(3): 504.61 K. Matsuura, (2007) “Forward” in A. Yusuf (ed.) Standard-setting in UNESCO Vol. I: Normative Action in Education, Science and Culture Essays in Commemoration of the Sixtieth Anniversary of UNESCO, Paris/Leiden: UNESCO publishing/Martinus Nijhoff, p. 12.

Institutional Autonomy - “that degree of self-governance necessary for effective decision making by institutions of higher education regarding their academic work, standards, management and related activities” (para 17).

Individual rights and freedoms - “the principle of academic freedom should be scrupulously observed. Higher-education teaching personnel are entitled to the maintaining of academic freedom, that is to say, the right, without constriction by prescribed doctrine, to freedom of teaching and discussion, freedom in carrying out research and disseminating and publishing the results thereof, freedom to express freely their opinion about the institution or system in which they work, freedom from institutional censorship and freedom to participate in professional or representative academic bodies”. (para 27).

Self governance and collegiality - “Higher-education teaching personnel should have the right and opportunity, ... to take part in the governing bodies ... while respecting the right of other sections of the academic community to participate, and they should also have the right to elect a majority of representatives to academic bodies within the higher education institution. ... Collegial decision-making should encompass decisions regarding the administration and determination of policies of higher education, curricula, research, extension work, the allocation of resources and other related activities” (para 31, 32).

Tenure - “Tenure or its functional equivalent, where applicable, should be safeguarded as far as possible even when changes in the organization of or within a higher education institution or system are made, and should be granted, after a reasonable period of probation, to those who meet stated objective criteria in teaching, and/or scholarship, and/or research to the satisfaction of an academic body”, (para. 46).

In 2009 Karran undertook a macro-level analysis of the degree of compliance with these elements by the constitution and legislative instruments in each of the (then) 27 EU states.62 The legislative data was examined to see whether or not it was in compliance with the UNESCO Recommendation by addressing the following questions: Are the universities legally autonomous?Is academic freedom protected either in the constitution or in law? Do the academic staff elect the majority of representatives to academic decision making bodies? Does academic tenure exist?For some countries, the legislation was unequivocal - for example Article 17: 6 of the Greek Constitution guarantees tenure by stating: “Professors of university level institutions shall not be dismissed prior to the lawful termination of their term of service, except in the cases of the substantive conditions provided by article 88 paragraph 4 and following a decision by a council constituted in its majority of highest judicial functionaries, as specified by law”. Similarly, but in stark contrast, paragraph 203 of the U.K. 1988 Education Reform Act had the purpose of “securing that the statutes of each qualifying (h.e.) institution include a provision enabling an appropriate body, … to dismiss any member of the academic staff by reason of redundancy”. However, in other states (such as Spain), tenure is offered following some form of competition but may be subject to periodic review, hence the nation concerned can be said to be in qualified rather than absolute compliance with the UNESCO Recommendation. Similarly, in Finland, academic staff are not in the majority on the University Board, but all members of the university board are appointed by the University Senate, which suggests qualified compliance with the UNESCO Recommendation on academic governance, as the majority of board

62 T. Karran, (2009b) “Academic Freedom in Europe: Reviewing UNESCO's Recommendation”, British Journal of Educational Studies, 57(2): 191–215.

members are either elected from, or appointed by, the academic staff. In addition, difficulties in adjudging compliance arise from the UNESCO Recommendation sometimes lacking clarity – for example paragraph 18 states that “the nature of institutional autonomy may vary according to the type of establishment involved” (but fails to specify what is required for compliance) while paragraph 46 states that “Security of employment in the profession, including tenure or its functional equivalent, where applicable, should be safeguarded” (my emphasis). For these reasons, on the basis of the relevant legislation, each nation was adjudged to be in compliance, qualified compliance, or non-compliance with the UNESCO Recommendation’s four critical elements. Space does not permit inclusion of the full set of results, however Table 4 contains illustrative examples demonstrating the approach used.The different nations were then ranked in accordance with their degree of compliance with the four elements of the UNESCO Recommendation, and the results are shown in Table 5 in the Appendix. As can be seen in the top half of the table only 7 of the (then) 27 EU states were fully compliant with all four elements, and ranked below them were a further 8 nations which were compliant with three elements, and in qualified compliance with the fourth. Interestingly, it is notable that this largely compliant cohort includes those states which have, until relatively recently, been under totalitarian control (e.g. Bulgaria, Hungary, Poland, etc.). These nations have only recently re-written their constitutions and their higher education legislation, and it is possible that their experiences of undemocratic rule have led them to better appreciate the benefits of academic freedom, both to the higher education sector, and society at large. Nevertheless in the majority of states, there is either complete or qualified compliance with the majority of UNESCO’s Recommendation. However, at the bottom of the table is the UK, in which compliance exists with respect to autonomy – all pre-1992 universities have their autonomy protected by their royal charters, while the post-1992 institutions are designated as higher education corporations. However the UK is non-compliant with respect to protecting academic freedom in law, and also with respect to a majoritarian role for academic staff in governance, while tenure was abolished in the UK nearly a decade before the UNESCO Recommendation was signed by Clair Short, the (then) Secretary of State for International Development, on behalf of the UK government.The method adopted in this 2009 study was very simple to apply, as it was a ‘top-down’ approach utilising single benchmarks for individual elements. Consequently, it did not address other significant international agreements and their operation across the EU countries, or the technical minutiae of national legislation, and the operation of such laws in individual EU states. Moreover this approach only enables individual states to be compared (and ranked) with each other, with respect to their protection for academic freedom, thus the measures derived can be described as nominal or ordinal. In essence, this approach was norm referenced, and could enable an assessment of whether the protection for academic freedom in one nation is greater than that in another. However, this approach does not allow the derivation of individual scores, which would show how closely a nation comes to meeting all its commitments, or whether the level of protection over time has altered, as this could only be undertaken with an interval measurement and criterion referencing. Such an interval measure, derived from a ‘bottom up’ approach which embraces a wide set of criterion referenced parameters, would make it possible to see (for example) if any nation scored 100% in terms of its protection for academic freedom, or show how the level of protection in individual nations has altered over time, or what the average score was for a group of nations, which was not possible with the previous nominal norm-referenced measure.

To overcome these problems, a new ‘bottom up’ analysis63 was attempted which includes the measures utilized in previous studies, such as (for example) the granting of tenure but also utilises additional international and inter-related measures, and thereby provides a much clearer and richer picture of the legal protection for academic freedom within the contemporary European Union states. For example, previous studies examined the process of appointing the Rector, but did not examine the process for dismissing the Rector, or the staff input into appointment/dismissal procedures for middle managers (Deans and Departmental Heads). This new study addresses these elements but also examined (inter alia) whether or not collegial bodies (like Senate) are legislated for and, if so, how are they composed; moreover, if these bodies exist, what is their role in determining university strategy. Furthermore, this further study includes an additional important dimension - the ratification by EU states of international agreements that are supportive of the protection of academic freedom

Previous analyses have examined compliance with the UNESCO Recommendation, but did not include other international legal instruments. This broader analysis includes the following European and International legal instruments. At European level, the European Convention on Human Rights offers indirect protection, as Article 10 specifies that “Everyone has the right to freedom of expression”.64 At global level, the International Covenant on Civil and Political Rights (ICCPR) was adopted in December 1966, and provides “the right to hold opinions without interference” and “the right to freedom of expression”. Both these rights can be seen to be necessary (though not sufficient) for academic freedom. Article 2 of the same Covenant requires that “each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant” and that “each State Party to the present Covenant undertakes to take the necessary steps, ... to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant”.65 Assessing Article 2, Sepúlveda concludes that “the duties to ‘respect’ and ‘ensure’ ... imply ... the duty to take positive actions necessary to ensure those rights”.66 Hence the ICCPR, like the 1st Amendment of the US Constitution on freedom of speech, protects academic freedom indirectly, while becoming a party to the Convenant by states who are not yet compliant, imposes on them the duty to introduce legislation to achieve compliance. The Optional Protocol to the ICCPR established an individual complaints mechanism for the ICCPR, under which parties agree to recognise the competence of the UN Human Rights Committee to consider complaints from individuals who claim that their rights under the Covenant have been violated.

The second international Covenant included in this broader appraisal is the International Covenant on Economic, Social Cultural Rights (ICESCR) also adopted in 1966. Article 15(3) calls on nations to “respect the freedom indispensable for scientific research and creative activity”.67 Moreover, in General Comment 3 (paragraph 10) the ICESCR states: “a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights is incumbent upon every State party. ... If the Covenant were to be read in such a

63 The measures described in this section of the report are taken from: Terence Karran, Klaus Beiter, Kwado Appiagyei-Atua, (forthcoming) “Measuring Academic Freedom in Europe: A Criterion Referenced Approach” submitted to Policy Reviews in Higher Education.64 European Court of Human Rights, (2010) European Convention for the Protection of Human Rights and Fundamental Freedoms, (as amended by Protocols Nos. 11 and 14, supplemented by Protocols Nos. 1, 4, 6, 7, 12 and 13), Strasbourg: Council of Europe, p. 11.65 United Nations, (1966) “International Covenant on Civil and Political Rights”, United Nations Treaty Series, Vol. 993, No. 14668, New York: UN, p. 178, 17366 M. Sepúlveda, (2003) The Nature of the Obligations under the International Covenant on Economic, Social and Cultural Rights, Antwerp: Intersentia, p. 126.67 United Nations, (1966) “International Covenant on Economic, Social and Cultural Rights”, United Nations Treaty Series, Vol. 993, No. 14531, New York: UN, p. 9.

way as not to establish such a minimum core obligation, it would be largely deprived of its raison d’être”. Academic freedom is considered a core obligation under the right to education (Article 13) - in General Comment 13: Right to Education, the ICESCR states: “it is appropriate and necessary for the Committee to make some observations about academic freedom. .... Academic freedom includes the liberty of individuals to express freely opinions about the institution or system in which they work, to fulfil their functions without discrimination or fear of repression by the State or any other actor, to participate in professional or representative academic bodies, and to enjoy all the internationally recognized human rights applicable to other individuals in the same jurisdiction”. The Committee adds, “violations of article 13 include … the denial of academic freedom of staff and students” (para. 59). In terms of implementation, the ICESCR (article 2(1)) requires a state to “take steps, individually and through international assistance and cooperation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures”.68 Hence the ICESCR firstly, recognises academic freedom as a core obligation, and secondly requires states parties to adopt legislative measures to recognise this right. As with the ICCPR, the ICESCR’s Optional Protocol creates an individual complaints mechanism to consider complaints from individuals or groups who claim that their rights under the Covenant have been violated.

In toto this ‘bottom up’ measurement method utilizes a total of 37 different legislative elements (these are shown in detail in appendix Table 6) for each EU nation state which enables the calculation of a composite measure of the legal protection for academic freedom out of 100%, and comprises the sum of the scores for five dimensions, each worth 20%. These dimensions are: academic freedom for teaching and for research; institutional autonomy; self-governance; academic tenure; and adherence to international agreements. This study is the most comprehensive and concise attempt to measure the de jure protection for academic freedom in the EU states, encompassing very detailed data from constitutions, legislative instruments and international agreements.

The results of this exercise are summarized in Table 7 in the appendix, and various aspects of the results are noteworthy. First, none of the nations comes close to full compliance on all the scores - the highest aggregate score is 69% (Croatia); moreover, the mean score for all EU states is relatively low - just over 50%. This suggests that that most EU states should legislate to provide better protection for academic freedom. Secondly, the variation between national scores is considerable - the range is from 34% to 69% and the standard deviation is 10.5. Thirdly, examination of the mean scores for the five different dimensions that were measured shows considerable variation. The mean score for protection under the constitution and international agreements averaged 15.6%, and that for academic freedom in legislation was 11.9%. These two parameters relate closely to exhortative legislative protection. By contrast the other three parameters are more concerned with the technical legal minutiae of academic freedom, as it operates within departments, and it is noticeable that these measures are relatively low - all average scores are below 10% out of 20%; moreover, the lowest average score is for academic tenure, evidence that there are very few EU nations in which job security is fully protected. Additionally, the greatest variations about the mean in these parameters is for self-governance and tenure, suggesting greater variations in these elements that in all others.

68 Economic and Social Council of UNESCO (2002) “Right to Education: Scope and Implementation” General Comment 13 on the right to education, (Art. 13 of the International Covenant on Economic, Social and Cultural Rights), Paris: UNESCO, p. 12, 59, 15.

The previous study utilising the UNESCO framework showed some that nations which had not long emerged from totalitarian rule (the ex-USSR and Warsaw Pact nations and Spain), tended to score higher than the other EU nations. This new analysis shows no discernible pattern between the nations in this group, or possible patterns between states that might be considered to have some symmetry owing to shared history, such as (inter alia) the Nordic states in the sample. Nevertheless, the ranking of the EU nations shows some symmetry with the previous study in which (for example) both Denmark and the UK languished near the bottom of the table. The UK has an aggregate score of 35%, which compares with an EU average of 52.8%, and is virtually half that of Croatia, which sits at the top of the table with 69%. Indeed, the data in this table for the UK is consistent with all those tables previously used, in that it shows the UK to be, yet, again, among the worst nations in Europe with respect to the de jure protection for academic freedom.

8 Conclusion and RecommendationsIn their definitive UK text on The Law in Higher Education, Farrington and Palfreyman commence the section on individual academic freedom with a quote from Karran’s comparative study, viz.: “in terms of the health of academic freedom, the U.K. is clearly the sick man of Europe”. In a footnote they quote further from the same source: “in the U.K., there is no constitutional protection for either freedom of speech or academic freedom, the law on academic freedom is designed to ensure ‘just cause’ for employment termination, the academic staff have only a minor input in the decision making process, the Rector is an external appointment over which they have no rights, and academic tenure exists for only a few staff, who are dwindling in number as retirement beckons”.69 Farrington and Palfreyman make no attempt to question the veracity of this terse and uncompromising statement; moreover, as this study has confirmed, the constitutional and legal protection for academic freedom in the UK is among the very worst of all the EU nations. This lack of constitutional and legal protection is not peculiar to the liberties of academics, although it has a direct bearing on their work, which is not experienced in other professions. Rather, it is symptomatic of a democratic deficit which characterises the British unwritten constitution and its attendant political system, and which is brought into sharp focus when comparisons are made with other EU states, all of which have a written constitution, most of which use a proportional electoral system, none of which has an unelected second chamber. This situation is unlikely to change and, indeed, may get worse if the UK exit from the European Union is followed by a British revocation of the European Convention on Human Rights, for which some members of the government have called. In the medium and long term, if Scotland secedes from the Union in order to stay in the EU, it is likely that, as a newly independent nation, it would produce its own written constitution. Such a move might cause England and Wales to follow suit. For the foreseeable future, however, the prospects of successfully lobbying at national level for an improvement in the constitutional and legal protection for academic freedom in the UK are non-existent.

However, experiences from other nations suggest other possible strategies which may prove more effective than attempting to lobby at national level to change the law or the constitution. First, in the USA, indirect protection for academic freedom is available under the first amendment protecting freedom of speech for staff in publicly funded universities. However, this protection does not apply in privately funded universities like Yale and Harvard. It is for this reason that the American Association of University Professors drafted their statement on

69 T. Karran, (2007) “Academic Freedom in Europe: A Preliminary Comparative Analysis”, Higher Education Policy, 20(3): 309, as cited in D. Farrington, and D. Palfreyman, (2012) The Law of Higher Education (2nd Edition), Oxford: Oxford University Press, p. 456.

Recommended Institutional Regulations on Academic Freedom and Tenure70 in 1940, and then pressed hard to get it implemented (and then observed) in as many universities as possible. Due to their efforts, the Statement is now recognized as the definitive document on academic freedom in the USA, and is that to which most universities conventionally adhere. Consequently, the acceptance of the AAUP Statement is so widespread that it is now deemed to “constitute a professional ‘common’ or customary law of academic freedom and tenure”.71 Given the centrality of conventions within the UK unwritten constitution, a similar statement protecting academic freedom in the UK, if pursued with the same vigour as the AAUP, could become the accepted professional benchmark for academic freedom in the UK, upheld and honoured by both academics and university managers alike.

A second option would be to follow the approach which was successfully adopted by the Danish equivalent of the UCU, the Dansk Magisterforening (DM), largely after lobbying at national level had failed, and to make an appeal internationally. Research that I published in 2007 and 2009 showed that, utilising measures of academic freedom from the 1997 UNESCO Recommendation, (and reported above) the worst two nations in the EU for the protection of academic freedom were the UK and Denmark. This was reported in the press, and consequently discussed in the Danish Parliament. As a result the President of the DM, Ingrid Stage, set up an online petition requesting that the Danish parliament change the legislation on academic freedom, which attracted signatures from 6502 Danish academics. Consequently, the DM made a submission to the joint ILO-UNESCO Committee of Experts on the Application of the Recommendations concerning Teaching Personnel (CEART), which is responsible for assessing complaints against national governments in respect to alleged breaches of the 1997 UNESCO Recommendation. Reporting in 2009, the CEART recommended that “the Government and the DM engage in social dialogue on issues of university governance”.72 Previously, the government had largely ignored protests by DM at national level, however, the international appeal to UNESCO and its response, meant that the government was forced to act. In 2009, the Danish government established an evaluation team comprising five international academic experts from outside Denmark to examine the 2003 University Act. The Evaluation Teams report concluded (p. 39) “article 17.2 of the 2003 University Act. … is seen by many academic staff members of the universities as a major symbol of the controversies around the Act, as it gives the institutional leadership the formal power to tell individual staff members which academic tasks to perform. The article could be regarded as an intrusion into traditional values and rights of academic university staff. … we find that the question can be raised whether article 17.2 in all its details fits the Danish and European traditions with respect to academic freedom. … Taking these considerations into account, the Panel recommends the Parliament to remove or reformulate the article 17.2”.73 Consequently, the government was forced to draft a new university law in June 2011, Section 2 of which states explicitly: “The university has academic freedom. The university must protect the university's and the individual's research freedom”. 74

70 American Association of University Professors (AAUP) (2013) Recommended Institutional Regulations on Academic Freedom and Tenure. https://www.aaup.org/file/RIR%202014.pdf last accessed 1st October 2016.71 M. Finkin, (1972) “Towards a Law of Academic Status”, Buffalo Law Review, 22 (3): 577. 72 Committee of Experts on the Application of the Recommendations Concerning Teaching Personnel (CEART) “Allegation received from the Dansk Magisterforening (DM) of Denmark” in Joint ILO/UNESCO Committee of Experts on the Application of the Recommendations concerning Teaching Personnel Report: Tenth session Paris, 28 September – 2 October 2009, Paris/Geneva: CEART/ILO, p. 38-44.73 A. Bladh, E. El-Khawas, A. Hasan, P. Maassen, G. Winckler, (2010) Danish University Evaluation 2009 – Evaluation Report, Copenhagen: Danish Ministry of Science, p. 3974 LBK nr 695 af 22/06/2011 - Bekendtgørelse af lov om universiteter (Law No. 695 of 22/06/2011 – Ordinance of Law on Universities), retrieved from

The UK is a signatory to the UNESCO 1997 Recommendation, and the other international covenants but repeatedly ignores the salient elements regarding academic freedom. Yet a repeat of the DM’s strategy by the UCU in the UK would not guarantee similar success, and would not be without risk. However, a submission to UNESCO by the UCU would be a tangible demonstration that the Union is aware of the problems of academic freedom experienced by its members, and is willing, if necessary, to devote appropriate resources to seek a remedy. Moreover such a move would also bring the UCU’s efforts to address this issue to the attention of its members (thereby raising their awareness of these issues), and to the attention of the media. At the very least it would be sensible to undertake a brief assessment of the costs and benefits of such a strategy.

This Danish experience shows that national governments are well experienced in, and adroit at, ignoring and/or muting protests about higher educational policy at national level. When the results of my research in academic freedom were reported in the Danish national press, and discussed in the Danish Parliament, the Danish Minister, Helger Sander, disparaged the evidence in the article, and argued in the press that, given that ex-communist nations headed the EU academic freedom ranking, he was glad that Denmark did not. In response, the DM President, Ingrid Stage stated in ForskerForum, (the monthly magazine of the Dansk Magisterforening) that: “The Danish university law’s degrees of freedom must now be tested against the international UNESCO declaration in response to an inquiry by the English scientist Terence Karran from Lincoln University which showed that Danish academic freedom is fully depressed in western context”.75 However, as the impact of the DM’s submission to UNESCO showed, national governments are less practised at dealing with international NGOs, whose calls for action they cannot so readily ignore. The documentation submitted to UNESCO by DM is obtainable, use of which as a template would reduce the cost and the time of the UCU in preparing its own submission. Moreover, the inclusion of data relating to the UK’s non-compliance with international agreements other than the UNESCO Recommendation, (like the ICCPR and the ICESCR, which were not included in the Danish submission) would significantly strengthen such a submission, and increase the likelihood that the CEART would recommend that the UK government takes action to remedy the situation. Given that the CEART’s response to a submission from UCU would be widely reported in the media, it is difficult to see how the incumbent Minister of State for Universities, Science, Research and Innovation could ignore it.

Terence Karran, October 26th 2016

https://www.retsinformation.dk/forms/R0710.aspx?id=140435, 20th October 2016.75 I. Stage, (May 2008) “Sander ignorerer frihedsgrader” (Sander ignores degrees of freedom) ForskerForum, No. 214, p. 14.

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Protection for Academic Freedom in the U.K.

The Constitutional & Legal Situation in a Comparative Context

Briefing Paper for the University and College Union

Appendix Tables

by

Terence Karran

Completed 26th October 2016

Address for correspondenceTerence Karran

School of EducationUniversity of Lincoln

Brayford PoolLincoln

LN6 7TS

Tel.: 01522 886346

Email: tkarran@lincoln.ac.uk

Contents

1. Constitutional protection for freedom of speech and academic freedom..............................1

2. Legislative protection for freedom to teach and undertake research.…………….................5

3. Legislative protection for self-governance and tenure …………….......................................9

4. UNESCO Analysis: compliance assessment example........................................................37

5. UNESCO “Top Down” Analysis: Summary Table………………………...............................40

6. Measures used for composite “bottom-up” analysis............................................................41

7. Composite “Bottom-Up” Analysis: Summary Table.............................................................42

Table 1 Constitutional protection for freedom of speech and academic freedom

Nation Freedom of Speech Academic Freedom

Austria

Art. 13. “Everyone has the right within the limits of the law freely to express his opinion by word of mouth and in writing, print, or pictorial representation” Basic Law of Austria

Art. 81c.“Public universities are places of free scientific research, teaching and development of the arts. They act autonomously within the framework of the laws and can issue statutes. The members of the university collegial bodies are free of instructions.” Federal Constitutional Law

Belgium Art. 19 “Freedom to demonstrate one’s opinions on all matters are guaranteed.” Constitution of Belgium

Article 24 “Everyone has the right to education with the respect of fundamental rights and freedoms.” Constitution of Belgium

Bulgaria

Art. 39 “Everyone shall be entitled to express an opinion or to publicize it through words, written or oral, sound or image, or in any other way” Constitution of Bulgaria

Art. 53. “Higher educational establishments shall enjoy academic autonomy.”Art. 54 “Artistic, scientific and technological creativity shall be recognized and guaranteed by the law.” Constitution of Bulgaria

Croatia

Art. 38 “Freedom of thought and expression shall be guaranteed.” Constitution of Croatia

Art. 68 “The autonomy of universities shall be guaranteed. Universities shall independently decide on their organisation and operationArt. 69 “The freedom of scientific, cultural and artistic creativity shall be guaranteed. The state shall encourage and support the development of science, culture and the arts.” Constitution of Croatia

Cyprus Art. 19 “Every person has the right to freedom of speech and expression in any form.” Constitution of Cyprus Not Applicable

Czech Republic

Art. 17: “The freedom of expression and the right to information are guaranteed”. Charter of Fundamental Rights and Basic Freedoms,

Art. 15 “The freedom of scholarly research and of artistic creation is guaranteed.” Charter of Fundamental Rights and Basic Freedoms,

DenmarkArt. 77 “Any person shall be at liberty to publish his ideas in print, in writing, and in speech, subject to his being held responsible in a court of law.” The Constitutional Act of Denmark

Not Applicable

EstoniaArt. 45 “Everyone has the right to freely disseminate ideas, opinions, beliefs and other information by word, print, picture or other means”Constitution of Estonia.

Art. 38. “Science and art and their teachings are free. Universities and research institutions are autonomous within the limits prescribed by the law” Constitution of Estonia..

Finland

Section 12 – “Everyone has the freedom of expression. Freedom of expression entails the right to express, disseminate and receive information, opinions and other communications without prior prevention by anyone” The Constitution of Finland

Section 16 - Educational rights “The freedom of science, the arts and higher education is guaranteed.” Constitution of Finland

France

Art. 11 “The free communication of ideas and of opinions is one of the most precious rights of man. Any citizen may therefore speak, write and publish freely, except what is tantamount to the abuse of this liberty in the cases determined by Law” Declaration of the Rights of Man and of the Citizen,

Not Applicable

1

Germany

Art. 5 “Every person shall have the right freely to express and disseminate his opinions in speech, writing and pictures, and to inform himself without hindrance from generally accessible sources” Basic Law for the Federal Republic of Germany,

Art. 53 “Arts and sciences, research and teaching shall be free. The freedom of teaching shall not release any person from allegiance to the constitution.” Basic Law for the Federal Republic of Germany

Greece

Art. 14 “Every person may express and propagate his thoughts orally, in writing and through the press in compliance with the laws of the State.” Constitution of Greece

Article 16 “Art and science, research and teaching shall be free and their development and promotion shall be an obligation of the State. Academic freedom and freedom of teaching shall not exempt anyone from his duty of allegiance to the Constitution.” Constitution of Greece

Hungary

Art. IX “Everyone shall have the right to freedom of speech.” Fundamental Law of Hungary

Art. X “Hungary shall ensure the freedom of scientific research and artistic creation, the freedom of learning for the acquisition of the highest possible level of knowledge, and, within the framework laid down in an Act, the freedom of teaching.” Fundamental Law of Hungary

IrelandArt. 40.6.1 “The State guarantees liberty for the exercise of the following rights, subject to public order and morality: The right of the citizens to express freely their convictions and opinions” Constitution of Ireland

Not Applicable

Italy

Art. 21 “Anyone has the right to freely express their thoughts in speech, writing, or any other form of communication” Constitution of Italy

Art. 33 “The Republic guarantees the freedom of the arts and sciences, which may be freely taught.”“Higher education institutions, universities and academies, have the right to establish their own regulations within the limits laid down by the law.” Constitution of Italy

Latvia Art. 100. “Everyone has the right to freedom of expression” Constitution of Latvia Not Applicable

Lithuania

Art. 25 “The human being shall have the right to have his own convictions and freely express them. The human being must not be hindered from seeking, receiving and imparting information and ideas.” Constitution of Lithuania

Art. 40 “Schools of higher education shall be granted autonomy.Art. 42 “Culture, science and research, and teaching shall be free. Constitution of Lithuania

LuxembourgArt. 24 “Freedom of speech in all matters and freedom of the press is guaranteed”, Constitution of Luxembourg

Art. 35 “academic freedom is exercised in accordance with the values of a democratic society based on human rights and public freedoms.” Constitution of Luxembourg

Malta

Art. 41 “no person shall be hindered in the enjoyment of his freedom of expression, including freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to communicate ideas and information without interference” Constitution of Malta

Not Applicable

Netherlands Art. 7 “No one shall require prior permission to publish thoughts or opinions” Constitution of the Netherlands Not Applicable

2

Poland

Art. 54 “The freedom to express opinions, to acquire and to disseminate information shall be ensured to everyone.” Constitution of Poland

Art. 72 “The autonomy of the institutions of higher education shall be ensured in accordance with principles specified by statute.”Art. 73 “The freedom of artistic creation and scientific research as well as dissemination of the fruits thereof, the freedom to teach and to enjoy the products of culture, shall be ensured to everyone” Constitution of Poland

Portugal

Art. 37 “Everyone has the right to freely express and divulge his thoughts in words, images or by any other means” Constitution of Portugal

Article 43 Freedom to learn and to teach “The freedom to learn and to teach is guaranteed. The state may not programme education and culture in accordance with any philosophical, aesthetic, political, ideological or religious directives” .Article 76 Universities and access to higher education “As laid down by law and without prejudice to an adequate assessment of the quality of education, universities shall enjoy autonomy in drawing up their own by-laws and in scientific, pedagogical, administrative and financial matters.” Constitution of Portugal

RomaniaArt. 30 “Freedom of expression of thoughts, opinions, or beliefs, and freedom of any creation, by words, in writing, in pictures, by sounds or other means of communication in public are inviolable” Constitution of Romania.

Art. 32 “The autonomy of the Universities is guaranteed.” Constitution of Romania

Slovakia

Art. 26 “Everyone has the right to express his views in word, writing, print, picture, or other means as well as the right to freely seek out, receive, and spread ideas and information without regard for state borders.” Constitution of the Slovak Republic

Art. 42 “Citizens have the right to free education at primary and secondary schools and, depending on their abilities and society’s resources, also at higher educational establishments”.Art. 43 “Freedom of scientific research and in art is guaranteed.” Constitution of the Slovak Republic.

Slovenia

Art. 39 “Freedom of expression of thought, speech and public appearance, and of the press and other forms of public communication and expression shall be guaranteed. “ Constitution of Slovenia.

Art. 58 “State universities and state institutions of higher education shall be autonomous.”Art. 59 “The freedom of scientific and artistic endeavour shall be guaranteed.” Constitution of Slovenia.

Spain

Art. 20 “The following rights are recognised and protected: a) the right to freely express and disseminate thoughts, ideas and opinions through words, in writing or by any other means of communication” Constitution of Spain

Art. 20 “The following rights are recognised and protected: c) the right to academic freedom” Constitution of Spain

Sweden

Art. 1. “Everyone shall be guaranteed the following : freedom of expression: that is, the freedom to communicate information and express thoughts, opinions and sentiments, whether orally, pictorially, in writing, or in any other way” Swedish Instrument of Government

Art. 18. “The freedom of research is protected according to rules laid down in law.” Swedish Instrument of Government

3

United Kingdom

The UK has no written constitution in the sense of a single, coherent document whose norms enjoy precedence over acts of parliament. The Bill of Rights of 1689 emphasises the importance of freedom of speech, but only in a parliamentary setting, and therefore has little relevance to public freedom of speech. Publicly U. K. citizens have a negative right to freedom of expression under the common law, which is restricted – for example UK laws on defamation are among the strictest in the western worldThe Human Rights Act of 1998 obliges courts to interpret existing legislation in accordance with the provisions of the European Convention on Human Rights (Section 3), as set out in Schedule 1 (Section 1(3)). The Convention covers the right to freedom of expression in Article 10. For practical purposes, the Human Rights Act may be considered to have a constitution-like effect. However, if an interpretation of freedom of speech under the Schedule is problematic, the court will be required to make a “declaration of incompatibility”. This in turn obliges the government to consider making a “remedial order” in response. The obligation is not that of actually bringing about the changes implicated. This remains for government to decide politically. Any remedial action taken needs to be approved by resolutions of each House of Parliament. Parliament thus remains sovereign. The Human Rights Act has been criticised by members of the Conservative party, as a result of their desire to scrap the European Convention on Human Rights. As a result of the EU referendum outcome (‘Brexit’), it is likely that this law will be repealed at some stage after the triggering of Article 50 of the Lisbon Treaty.

Not Applicable

4

Table 2 Legislative protection for freedom to teach and undertake research

Nation Freedom to Teach Freedom for Research

Austria

Art. 2. “The guiding principles to be observed by the universities in pursuance of their objects are: freedom of sciences and their teaching and freedom of scientific and artistic activity, the dissemination of the arts and their teaching; diversity of scientific and artistic theories, methods and doctrines; freedom of study.”Art. 20 “unit heads shall conclude target agreements with the university members assigned to the respective organisational units specifying the services to be rendered by such members in respect of research, the advancement and appreciation of the arts, and teaching. In so doing, they shall have regard for scientific and artistic freedom, and for the need to leave sufficient scope for scientists and artists to pursue their research, artistic and teaching activities”Art. 105. “No member of a university may be required to participate in scientific or artistic work which conflicts with his/her conscience.” University Law 2002

Belgium

Art. 8 “In performing their duties, al staff members of a higher education institution shall enjoy academic freedom”“Academic freedom expresses the principle that teachers and researchers must, in the very interest of the development of knowledge and the pluralism of opinions, enjoy a very wide freedom to carry out research and to express their opinions in the performance of their duties. Academic freedom therefore constitutes an aspect of freedom of expression (Article 19 of the Constitution) and forms part of freedom of education (Article 24.1 of the Constitution)”. Decree defining the landscape of higher education and the organization of academic studies 1953

Bulgaria

Art. 55. “The members of the academic staff in the higher schools shall have the right to: develop and teach the study content of their discipline freely and in compliance with the requirements of the study plan and the study programmes”. Higher Education Act 1995

Art. 55. “The members of the academic staff in the higher schools shall have the right to: freely to conduct, according to their interests, scientific research and to publish the results thereof”. Higher Education Act 1995

Art. 20. “The academic freedom shall be expressed in freedom of teaching, freedom of carrying out scientific investigations, freedom of creative performance and freedom of learning, freedom of cooperation, conducting joint training activities with other universities and research organisations and educational franchises with other universities, and joint research, creative, design and innovation activities with other universities and organisations in the country and abroad.” Higher Education Act 1995

Croatia

Art. 2 “Scientific work is based on: Freedom and autonomy of creativity; Ethics of scientists.” The Science and Higher Education Act 2003

Art. 4 “Higher Education in the Republic of Croatia is based on academic freedom, academic self-government and university autonomy, in accordance with the Constitution, international treaties and the law. Academic freedom is enjoyed by all members of the academic community and includes freedom of scientific and artistic research and creativity, learning, cooperation and association, according to the Croatian Constitution, international treaties and the law.” The Science and Higher Education Act 2003

Cyprus

Art. 4(2) “The mission of the University shall be the advancement of science, knowledge, learning and education by teaching and research, and in particular the safeguarding of academic freedom and the freedom of scientific pursuit and dissemination of ideas” The University of Cyprus Law 2013Art. 3(2) “The above purposes of the university will be achieved by (m) the securement of academic freedom and of free academic research.”, The Private Universities (Establishment, Operation and Control) Law, 2005

5

Czech Republic

Section 4 “The following academic freedoms and rights are guaranteed at higher education institutions: b) freedom of teaching, in particular with regard to openness to different scientific and scholarly views, scientific and research methods and artistic movements; c) the right of learning, which includes the free choice of specialisation within the framework of degree programmes as well as the freedom to express one’s views during classes” Higher Education Act 1998

Section 4 “The following academic freedoms and rights are guaranteed at higher education institutions: a) freedom of scholarly, scientific, research and artistic activities as well as publication of the results thereof” Higher Education Act 1998

Denmark

NA

Art. 2(2) “The university enjoys freedom of research (forskningsfrihed). The university must defend and uphold both scientific ethics and the freedom of research of the individual researcher as well as of the university as a whole”. The Danish (Consolidation) Act on Universities 2011

Part 1, Section 2.2 “The university has academic freedom. The university must protect the university's and the individual's research freedom”. Danish Consolidation Act on Universities (the University Act), No. 652 of 24 June 2012 as amended by section 1 of Act No. 1236 of 18 December 2012.

EstoniaArt. 9.”The statutes of a university shall contain the following information: members of the university and their rights and obligations” Universities Act 1995. However, the Statutes of the University of Tartu, Estonia's national university, contain no mention of academic freedom

Finland Chapter 2 Section 6 “At the universities there is freedom of research, art and teaching” Universities Act 2009

France

Article L952-2 “The lecturers, teachers and researchers enjoy full independence and full freedom of expression in the exercise of their functions of teaching and their research activities under the reservations required of them, according to academic traditions and the provisions of this code, to observe the principles of tolerance and objectivity“ Code de l’éducation (Law n° 2013-660 du 22 juillet 2013 on higher education and research)

Germany

Section 4 “Freedom of art and science and of research, teaching and study: (1) The Land and the institutions of higher education shall ensure that the members of each institution of higher education are able to exercise the constitutional rights guaranteed in the first sentence of Article 5(3) of the Basic Law (Grundgesetz)”. [Art. 5.3 “Every person shall have the right freely to express and disseminate his opinions in speech, writing and pictures, and to inform himself without hindrance from generally accessible sources”] Framework Act on Higher Education 1999

Greece

Art. 3 “In Universities, academic freedom in research and teaching and the free expression and exchange of ideas shall be safeguarded.”Art. 4 “To accomplish their mission, institutions shall be organised and run in terms of rules and practices that ensure compliance and protection of these principles: a) freedom in research and teaching” Higher Education Law 2011

HungaryArt. 19. “Rights and obligations of individuals employed as lecturers: Individuals employed in lecturer positions shall be entitled to the right to perform educational activities in accordance with their world view, ideology and values” Act on Higher Education 2011

Ireland

Art. 14 “(1) A university, in performing its functions shall—(a) have the right and responsibility to pre-serve and promote the traditional principles of academic freedom in the conduct of its internal and external affairs, and (b) be entitled to regulate its affairs in accordance with its independent ethos and traditions and the traditional principles of academic freedom, (2) A member of the academic staff of a university shall have the freedom, within the law, in his or her teaching, research and any other activities either in or outside the university, to question and test received wisdom, to put forward new ideas and to state controversial or unpopular opinions and shall not be disadvantaged, or subject to less favourable treatment by the university, for the exercise of that freedom.” Universities Act 1997

6

Italy

Art. 6 (3) “The universities perform activities in teaching and organising the facilities in accordance with the freedom of teaching of teachers and the general principles laid down in the rules governing the university teaching structure” Law of 1989, no. 168

Art. 6 (4) “The universities are primary centres of scientific research and operate, for the realisation of their institution purpose in accordance with the freedom of research of professors and researchers as well as the autonomy of scientific research facilities” Law of 1989, no. 168

Art. 1(4) “The Ministry, while respecting the freedom of teaching and the autonomy of universities, indicates goals and strategic directions for the system and its components” Higher Education Law 2010

Latvia

Section 5 (6) “Institutions of higher education shall guarantee the academic freedom of academic staff and students, prescribing this in the constitutions thereof.”Section 6 “Academic freedom (1) The freedom of studies, research work and artistic creation shall be ensured in institutions of higher education if this freedom does not contradict with the rights of other persons, the constitution of an institution of higher education and regulatory enactments”. Law on Institutions of Higher Education 1995

Lithuania

Art. 3 (1) “Research shall be based on the following principles: (1) freedom of creation and research;( 2) academic ethics;” Law on Higher Education and Research 2009

Article 3 (2) “Higher education shall be based on the following principles: 1) academic freedom and autonomy” Law on Higher Education and Research 2009

Luxembourg

Art. 30 “academic freedom (1) In the exercise of their teaching and research duties, members of the University shall enjoy academic freedom. (2) Academic freedom includes, in addition to freedom of thought and expression, freedom of education, research and studies; it is exercised in accordance with the fundamental principles of teaching and research.” Law creating the University of Luxembourg 2003

Malta Neither the Education Act of 1988, nor the Statutes of the University of Malta mention academic freedom

Netherlands Article 1.6. “academic freedom: the institutions’ academic freedom is respected.” Higher Education Law 1992

Poland Part 1.1 Art. 4 “2. Higher education institutions shall be governed by the principles of academic freedom in teaching, scientific research and artistic creativity.” Law on Higher Education (2005)

Portugal

Art. 74 “Pedagogical autonomy confers on public higher education institutions the right to draw up study plans, define course objectives, allocate resources and choose procedures for the assessment of knowledge, affording both teachers and students intellectual freedom in teaching and learning processes”. Higher Education Law 2007

Romania

Art. 123 (5) In higher education institutions the freedom of research is ensured in terms of setting the subjects, choosing the methods and procedures and capitalising results, in compliance with the law. Law of National Education (2011)

Art. 118 (1) “The national higher educational system is based on the following principles: b) the principle of academic freedom”Art. 123 (1) “University autonomy is guaranteed by the Constitution. Academic freedom is guaranteed by law”.Art. 304 (3) “The academic freedom of the members of the university community is guaranteed. Based on this liberty, they have the right to freely express their academic opinions in the university and have the freedom of teaching, research and creation, according to the criteria of academic freedom” Law of National Education 2011

7

Slovakia

Part 1 Section 4 “Academic freedoms and academic rights. (1) The following academic freedoms and academic rights shall be guaranteed in h.e.i.: (b) freedom of teaching consisting especially in openness to diverse scientific opinions, scientific and research methods and artistic trends” Higher Education Law 2002

Part 1 Section 4 “Academic freedoms and academic rights. (1) The following academic freedoms and academic rights shall be guaranteed in h.e.i.: (a) freedom of scientific investigation, research, development or artistic and other creative activities and disseminating their results”, Higher Education Law 2002

Slovenia

Art. 6 “A university shall be an autonomous, scientific-research, artistic and educational higher education institution with a special status. Universities and independent higher education institutions, which are established by the Republic of Slovenia, shall operate according to the principles of autonomy, which shall mostly ensure the following: freedom of research, artistic production and knowledge mediation”,Art. 52 “Higher education teachers are responsible for the educational, artistic and research programme. In their work, they follow and contribute to the development of science, art and professionalism in the field for which they are elected, independently develop those areas of science, art or professionalism and care for the transfer of this knowledge.” Higher Education Act 1993

Spain

Art. 33 “On teaching (2) Teaching is a right and a duty of teachers in universities, which they exercise with academic freedom, with no restrictions other than those set out in the Constitution and the laws and bylaws on the organisation of teaching in universities.” Universities Act 2001

Art. 39 “Research and the transmission of knowledge; functions of the university (2) Freedom of research in universities is recognised and guaranteed.” Universities Act 2001

Art. 2 “University autonomy (3) The activity of the university and its autonomy are based on the principle of academic freedom, which manifests itself in the freedoms to teach, research and study.”Art. 6 “The rules of organisation and operation of private universities will be developed and approved by themselves, subject in all cases to the constitutional principles and with the effective guarantee of the principle of academic freedom which manifests itself in the freedoms to teach, research and study” Universities Act 2001

Sweden NA

Section 6 “The following general principles shall apply to research: research issues may be freely selected; research methodologies may be freely developed, and research results may be freely published.” Higher Education Act 1992

United Kingdom

Section 202 “The University Commissioners: (1) There shall be a body of Commissioners known as the University Commissioners (in this section and sections 203 to 207 of this Act referred to as “the Commissioners”) who shall exercise, in accordance with subsection (2) below, in relation to qualifying institutions, the functions assigned to them by those sections. (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; (b) to enable qualifying institutions to provide education, promote learning and engage in research efficiently and economically; and (c) to apply the principles of justice and fairness.” Education Reform Act 1988Art. 26 “Academic freedom (1) A fundable body must have regard to the desirability of: (a) ensuring the academic freedom of relevant persons; and (b) ensuring that the matters mentioned in subsection (2) are not adversely affected by the exercise of a relevant person’s academic freedom. Further and Higher Education (Scotland) Act 2005

8

Table 3 Legislative protection for self-governance and tenure

Nation Tenure Self-governance

Austria

Austrian universities do not have tenure track postions, and contracts are often temporary until the level of full professor. The latter still have to undergo an assessment after 3 to 6 years in the position. Bundesgesetz über die Organisation der Universitäten und ihre Studien (Universitätsgesetz 2002)

Senate and the Federal government have an equal say in determining the composition of the University council. The council is a decision-making and supervisory body which approves the development plan, the organisation plan, the draft performance and development agreements, concludes the target agreements with the rector and approves the proposed budget; it further elects and dismisses the rector and the vice-rectors13 out of 18 or 19 out of 26 senate members are elected from, and by, academic staff. Senate decides on academic matters (but the rectorate also has powers in such matters); it makes nominations for the position of rector; it has a 50% say in the constitution of the university council; regarding management matters, it either has a power of approval or may express an opinionBundesgesetz über die Organisation der Universitäten und ihre Studien (Universitätsgesetz 2002)

Belgium

From a contractual point of view, academic staff are a type of civil servant in public higher education.The boards of governors have the authority to assign candidates to full-time or part-time vacancies. Assistant academic staff are appointed on a temporary basis, while the autonomous academic staff are appointed on a permanent basis with the exception of professors extraordinarii who hold a part-time university position.The Decreet betreffende de universiteiten in de Vlaamse Gemeenschap introduces a “tenure track”‘ for lecturers (docenten) (autonomous academic staff). This is a temporary appointment of up to 5 years, with the prospect of a permanent appointment to the post of senior lecturer (hoofddocent) without the job being re-advertised if the lecturer’s performance is assessed favourably. Usually permanently-appointed academic staff start their career as lecturer (docent). Departmental or faculty evaluation committees evaluate candidates who seek to get promoted within the autonomous academic staff (ZAP). The Flemish Government has left the responsibility to set the seniority requirements for appointments to a certain ZAP-grade to the universities. The University Decree of 12 June 1991 further stipulates that when setting the composition of staff and the estimated annual occupancy rate, the number of positions of the autonomous academic staff, which is expressed in full-time units, may not exceed 70 percent of the total number of positions in the composition of academic staff. As long as this figure is exceeded no further appointments may be made in that particular staff category.

The governing bodies of the university, are the Board of Directors and the Executive Board.The board of directors comprises 4 ex officio university functionaries, the rector and the chairmen of these academic governing bodies: the “Onderwijsraad”, the “Onderzoeksraad” and the “Raad voor Wetenschappelijke en Maatschappelijke Dienstverlening”, 6 representatives of the “zelfstandig academisch personeel”, elected by and from among them, 3 representatives of the “assisterend en bijzonder academisch personeel”, elected by and from among them, 3 representatives of the administrative personnel, elected by and from among them, 3 students, 3 members appointed by state and church and 3 members from the public sphere co-opted by the other members; hence, there are 25 members, out of which between 9 and13 are academic staff.The Executive Council comprises the rector, the chairmen of these academic governing bodies: the “Onderwijsraad”, the “Onderzoeksraad” and the “Raad voor Wetenschappelijke en Maatschappelijke Dienstverlening”, the university manager and 1 representative each of the “zelfstandig academisch personeel”, the “assisterend en bijzonder academisch personeel”, the administrative personnel and the students, appointed from among the members of the board of directorsThe Board of Directors is the supreme decision-making body; it determines the guidelines for the establishment, orientation, organisation, coordination and quality assurance of teaching and research, the division of the university into academic units, the academic governing structures of the university, the statutes and other regulations, including those for the

9

election of the rector, the faculty councils and the deans, the budget, the annual financial account and the annual report, the distribution of resources, the personnel structure, the appointment of the rector and the deans and the appointment of the members of the “zelfstandig academisch personeel”The Executive Board prepares the decisions of the board of directors, disposes over university finances and property, ensures academic order, appoints the members of the “assisterend en bijzonder academisch personeel” and the administrative personnel; the rectorate is liable for its actions to the board of directors.Decreet houdende wijziging van diverse decreten met betrekking tot de Universiteit Antwerpen (1995)

Bulgaria

Academic staff are appointed in compliance with the Labour Code, but do not have the status of state employees. Associate professors and professors have employment contracts for an indefinite period. However, the h.e.i.s assess the contribution of each member of the academic personnel to the educational, scientific and research, administrative and other activities, once every 3 years to persons without academic rank and once every 5 years to lecturers with academic rank (i.e. those in tenured posts). The contracts normally have the following duration: professor – permanent; associate professor –permanent; chief assistant – permanent; assistant – fixed, 2-4 years; PhD candidate – fixed, 2-4 years.Higher Education Act 1995

The three management bodies are the General Meeting, the academic council and the rector. The general meeting consist of representatives of academic staff, of administrative personnel and of students and doctorands; at least 70% of members must be associate professors and professors (at most 15% of members will be lecturers without academic rank); the general meeting elects the members of the academic council and also the rector.Thus the academic council consists of representatives of academic staff, of students, of doctorands and of employees; not less than 70% of members must be associate professors and professors (at most 15% of members will be lecturers without academic rank); the general meeting (approving the Regulation) will decide on the exact composition of the council; it elects the members of the council; the academic council decides not only on academic matters, but also, e.g., determines the university’s general education and research policy and adopts its budget, it elects deputy rectors and members of the council of trusteesThe council of trustees is a supervisory body that may “issue comments”; all the members are external appointmentsHigher Education Act 1995

Croatia

Academic staff in public higher education institutions [assistant professors, associate professors, professors and professors with tenure] are public servants and their employment is subject to public service legislation. Two types of grades are required for university academic staff: first, an appropriate scientific grade; second, a scientific/teaching grade, which relates to the teaching position at the university, gained through an appointment procedure carried out autonomously by the university by means of a competition. Persons appointed to teaching positions conclude a permanent employment contract, which includes an obligation to seek reappointment or advancement every five years. The obligation to seek reappointment ends with the person’s second appointment to the position

The university managerial bodies are the Rector, the Senate,- and the Council.Thus there are representatives of academic staff and of students (and of other employees) in the senate; at least 60% of its members must be of “academic title”Thus the senate decides on all academic matters, but also has wide competences regarding the running of the university generally; e.g.: it adopts the statutes, decides on the development of the university, adopts its budget and confirms deans and other unit headsThe University Council supervises the execution of tasks of the university, specifically the legality of its work, the rational use of human and material

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of a professor with tenure. Tenure can be revoked as a result of negarive assessment..The Science and Higher Education Act 2003

resources, the realisation of the decisions of the Senate and it performs other duties provided by the foundating act and the statute Thus there are many external members on the university council; the senate appoints 6 out of 12 members (one must be a student); the others are appointed by the state, local government and commerce; members may not be in the senate or in leadership positions in the university; the council is a mere supervisory bodyThe Science and Higher Education Act 2003

Cyprus

Tenure is possible for the two highest academic ranks of Professor and Associate Professor. After three years as a lecturer, staff can be evaluated and achieve the promoted status of Assistant Professor. If successful, after another four years as Assistant Professor, application can be made to becomes an Associate Professor, and then after another four years, to the position of full Professor. Employment contracts are as follows: specialised academic staff –fixed, (r 1-2 years); lecturer – fixed, (2-4 years); assistant professor – fixed, [>] 4 years; associate professor – civil servant – permanent; professor – civil servant – permanentUniversity of Cyprus (Election, Qualifications and Promotion of Academic Staff) (Amendment) Regulations 2001

About 5 out of 14 members of the university council are of academic title. The university council has decision-making powers; it manages the administrative and financial affairs and the property of the university, prepares the budget and decides on the level of salaries of staff, allocates funds for building infrastructure and exercises control over appointments and promotions of academic staffthe Senate is the supreme academic body, 35 out of 43 members of the senate are of academic title [8 faculties],The University of Cyprus Law 1989 to 2013

Czech Republic

Employment contracts: assistant – fixed, (2-4 years); assistant professor – fixed, (>4 years); associate professor – permanent; professor – permanent. Academic careers progress via promotions through the categories of assistent, assistant professor, associate professor and professor. The conditions of appointment as an assistant/assistant professor are set by the higher education institution. Employment rights and conditions of service for academic staff are set out in the national Labour Code. The self-governing body of a higher educational institution specifies these conditions according to its needs and they are set out in the internal regulations of individual institutions. If there are trade unions at the workplace, the service conditions are subject to negotiation. All these local specifications, however, must still respect the framework set by the generally binding legal regulations. Two types of contracts are available: A permanent contract – an employer can terminate a permanent contract only for reasons stipulated by the law. A fixed term contract – a teacher can be employed on a fixed term contract for up to three years, which may be repeated twice (so the employment period can last up to 9 years maximum). During the fixed term contract, the teacher has the same rights as if on a permanent contract. As such there is no tenure system - employees receive a contract for a limited or unlimited period. In practice, an assistant professor can receive a contract for a limited period of up to four years, (renewable three times). Even for higher academic ranks limited period contracts are common; however, after the maximum number of

All Universities have the following a) the Academic Senate; b) the Rector; c) the Scientific Board; d) the Disciplinary Committee. The Academic Senate of a public h.e.i. is its autonomous representative academic body. The senate (of at least eleven members) comprises representatives from the academic staff and the students (who may make up to 50% of the Senate members) and is elected by academic staff and students in direct elections. The senate has decision-making powers regarding academic matters but also with respect to approving the budget, internal regulations, annual reports, the strategic plan, proposals for nominations of members of the academic board. In such matters Senate usually acts on proposals made by the rector; in matters concerning the h.e.i.’s property, Senate expresses its views before the board of trustees and gives its written consent concerning legal acts pertaining to such property; the senate votes on proposals to nominate or dismiss the rector; it further approves the rector’s proposals for nominating or dismissing members of the scientific boardMembers of the scientific board are active in teaching, scholarship, science, research, development or innovation; at least one third of the members must be external appointments; the rector makes proposals regarding nominations; these require the senate’s approval but members are appointed by the rectorThe scientific board discusses the strategic plan, has competency with regard to the procedures for the appointment of professors and expresses

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renewals of a limited period contract occurs, an employee must be offered an unlimited period contract if the employment continues.

its view on matters presented to it by the rectorThe Board of Trustees of a public h.e.i. consists of at least nine members that are . appointed and dismissed by the Minister after consultation with the Rector.The board of trustees must give its written consent concerning legal acts pertaining to the h.e.i.’s property (after the senate has expressed its views); the board expresses views on the strategic plan, the budget and the annual reports on activities and financial managementHigher Education Act (1998)

Denmark

The following posts can be appointed Assistant Lecturer (part-time position), appointed for up to three years, with possible reappointment; part-time Lecturer (part-time position), both permanent and fixed- term work is possible. Assistant professorships are fixed-term appointments for up to four years, and may qualify for a subsequent appointment as assistant professor which can be fixed-term for up to four years, with possibility of one reappointment, but can also be filled permanently, by transferring to a position as associate professor after a maximum of six year, following a positive evaluation. The post of associate professor is normally a permanent appointment, but may also be limited in time, for example, by appointing guest lecturers or for special projects. Full Professorships are normally permanent appointments, but may also be limited, for example, by hiring visiting professors or for special projects. For Professors with special responsibilities, employment is limited from three to eight years, with an option to extend, but the overall period shall not exceed eight years. Hence tenured posts do exist, but they are filled only after an extensive career, and positive evaluations. Even Professorial posts can be for a limited term.The Danish (Consolidation) Act on Universities (2011)

The University Board is the highest authority of the university.The Board safeguards the university’s interests as an institution of education and research and determines guidelines for its organisation, long-term activities and development; it administers the university’s funds and its real estate, approves its budget, employs and dismisses the rector and the university’s senior management team (the latter on the recommendation of the rector), enters into a development contract with the minister and draws up the university’s by-lawsThe Board comprises representatives of academic staff, technical and administrative staff and of students and external members who must constitute a majority of members. The Board’s chairman must be an external member; external members must have experience with management, organisation and finance; an external member may sit on the board for a maximum of eight years over at least two terms; external members are nominated and selected by two separate bodies established “by the university”; the board lays down the procedures for establishing these bodies; the other members must be elected by and from academic staff, technical and administrative staff and studentsThe rector may establish one or more academic councils in order to ensure co-determination and involvement in questions regarding academic matters.Academic councils “make statements and recommendations” on academic issues; their members represent academic staff and students at the organisational level at which they are established; the respective representatives are elected by and from academic staff and students; they are appointed by the rectorThe Danish (Consolidation) Act on Universities (2011)

EstoniaMembers of the ordinary teaching staff or research staff shall be elected to office by way of competition for up to five years. Members of the extraordinary teaching and research staff shall be employed for a term of up to three years. A contract of employment for an unspecified term shall be

The collegial decision-making body of the university is the councilThe rector, the vice-rectors, representatives of teaching and research staff and students and certain other persons are members of the council, the exact composition is regulated by the statutes; which need to be approved

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entered into with any person who has been working as a professor at the same university for at least eleven years. All vacant positions of ordinary teaching staff and research staff are filled for up to five years by way of public competition with equal conditions for all participants. The Rector enters into contracts of employment with persons who are successfully evaluated. Entry into a contract of employment may be refused if the conditions of the evaluation have been violated. It is not permitted to make members of the teaching staff of a university redundant during an academic semesterTenure is possible, but only for Professors after 11 years service, and a positive evaluation.Universities Act (1995) (as at 2013)

by the council;The Council is the highest decision-making body and has decision-making powers to: approve the statutes of the university and of its structural units, adopt development plans for the university, approve curricula, approve the budget, establish general rules concerning the administration of the university and its teaching and research, elect professors and decide on issues relating to the university’s assets. The rector may veto any of the council’s decisions; it may, in turn, express no confidence in the rector.5 out of the eleven members of the Council are appointed by the Senate .Senate is drawn from the university staff (not just the academic staff), and 20% come from the student bodyUniversity of Tartu Act 1995 (as at 2013):

Finland

Selection procedures for University personnel are laid down in the university regulations, and the employment relations are governed by relevant statutes and terms agreed in a collective bargaining agreement and in the contract of employment. The University may not act in the employment relation in a manner which may endanger the freedom of research, art or education. The employment contract of an employee belonging to the research and teaching personnel of the university may not be terminated or cancelled on grounds reference to which would infringe upon the freedom of research, art or education.Universities Act (2009) (as at 2013)Finland’s largest university, the University of Helsinki, has introduced a tenure track system for teaching and research staff. A person may be chosen to the tenure track system, if no more than 10 years have elapsed since he or she took a doctoral degree and if the person in question has achieved promising scientific and other merits during this period. A person who is accepted to the tenure track system is employed as Assistant Professor for fixed-term employment (3-5 years), during which his or her performance is monitored and evaluated according to the criteria defined when concluding the employment contract. Success in the evaluation leads to new fixed-term employment as Associate Professor with the aim of eventually obtaining the tenure of a Professor.Assistant Professors draw up a work plan for each academic year in such a manner that the Assistant Professor is able, within the frames of the plan, to reach the goals set for his or her successful operations. If the work record has met the goals set in advance, the employment will be continued with a contract of 3 to 5 years, and the goals for the second period will be set at this stage. If the work has not reached the desired result or goals, the employment will be terminated at the end of the first employment period. After evaluation the Rector decides if the employment of the Assistant Professor will be continued with a second period. One year before the end

The organs of a public university are the board, the rector and the university collegiate body. The highest executive organ of a public university is the board.The board controls the university’s operations, finances, strategy and management, decides on the operating and financial plan and the budget and prepares the financial statement, manages the university’s assets, adopts the performance agreement with the Minister and adopts the university regulations; it elects the rector and removes him from office if there is a legitimate reason for doing soThe board has 7 or 9−14 members, comprising representatives (a) of professors, (b) of teaching, research and administrative staff, (c) of students and (d) external appointees who must constitute at least 40% of the board’s members; they are elected by the university’s collegiate body; none of the other three groups of representatives must constitute more than 50% of the total number of representatives from these three groupings, the collegiate body determining the respective totals; the representatives are elected by each group; the collegiate body decides on the number of board members; the rector, the director of a faculty and the members of the collegiate body may not be members of the board; hence, representatives of academic staff may constitute more than 50% of the board’s members; the collegiate body, however, determines the number of members of the board and elects the external expertsThe collegiate body (up to 50 members) comprises representatives of professors, of teaching, research and administrative staff, and of students; none of the three groupings of representatives can constitute more than 50% of the total number of representatives from these groupings. The size of the body and the number of persons belonging to the groupings is to be laid down in the university regulations, these requiring the board’s approval. Representatives of academic staff would ordinarily constitute more than 50% of the collegiate body’s members. The collegiate body’s

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of the second employment period, Assistant Professors are evaluated to see if the conditions for tprofessorial tenure have been met. If not, the employment will be terminated at the end of the fixed period. If there are not sufficient grounds for tenure, a proposal for a decision on this will be sent to the Rector, together with statements by the dean and the head of the department, and the employment of the Assistant Professor is terminated at the end of the second fixed-term period.The 2009 Universities Act altered the contracts of university staff, and moved them from the status of civil servants (employed by the government) to university employees (with a contract with the university). Universities have introduced tenure track constracts, these may vary by institution [for example Aalto University’s system has five levels: Assistant professor (apulaisprofessori) first term, 3 years; Assistant professor (apulaisprofessori) second term, 4 years; Professor, level 1 :associate professor; Professor, level 2 : professor; Professor, level 3 : distinguished professor] but most will follow the University of Helsinki model, as it is the largest university. Tenure is possible within the new system, but the process of progress to tenure is now controlled by the university.

function is to secure a mesure of control for academic and other staff and students over the board and the rector; the collegiate body further confirms the financial statement and the annual report of the universityUniversities Act (2009) (as at 2013)

France

Access to tenured positions (Professorships and Senior Lecturerships) in most subjects is through a two stage procedure. First, the successful submission of a doctoral thesis (these nouveau regime) for Senior Lecturerships or of a habilitation thesis (these d’habilitation) for a Professorship. Second, registration on the list of ‘qualified’ academics recognised by the National Council of Universities. The process of obtaining recognition by the Council and the recruitment to academic posts is undertaken annually, on a national basis. Newly recruited Senior Lecturers will usually serve a ‘probationary period’ (of one to two years) before being granted tenure and civil servant status by the Ministry of Education, following the recommendations made by the internal Recruitment Board of the university department concerned. It is possible, but extremely rare, for tenure to be denied at this stage. Temporary/permanent positions: As civil servants, the vast majority of Assistant and Full Professors are tenured.Successful academics obtain tenure at an early stage of their career: Assistant Professors at public universities and Research Fellows at research centres are granted tenure (the researcher is “titularisé”) after a probation period of approximately one year. Academics have status of civil servants. As 80% of the academic staff occupies permanent tenured positions, France enjoys a very high level of job security.Code de l’éducation (taking account of) Loi n° 2013-660 du 22 juillet 2013 relative à l’enseignement supérieur et à la recherche)

The conseil d’administration consists of 24-36 members, of which 8-16 represent enseignants-chercheurs, enseignants and chercheurs (half of these must be professors), 4 or 6 represent students, 4 or 6 represent other staff and 8 are external members; the external members include at least 2 representatives of local authorities (at least one representative from the region), designated by these authorities, at least 1 representative of research organisations designated by organisations maintaining cooperative relations with the institution and no more than five persons appointed following a public call for applications (including at least: a person assuming general management functions within a business, a representative of organisations representing employees, a representative of a company employing fewer than five hundred employees and a representative of a secondary education institution); representatives of academic staff will thus never constitute more than 50% of the members and may even constitute only one third of members (8 of 28 at least – 28,6% or 16 of 32 at most – 50%)

The conseil d’administration approves the charter and statutes of the institution, the budget and the financial accounts, contracts signed by the rector, loans, investments, the acquisition or alienation of immovable property, the rector’s annual report and it comments on the suitability of candidate enseignants-chercheursCommittee of Research: 75-80% representatives of enseignants-chercheurs and enseignants, and students (50%/50%), 10-15%

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representatives of other staff, 10-15% external members [37,5-40% representatives of academic staff]Code de l’éducation (taking account of) Loi n° 2013-660 du 22 juillet 2013 relative à l’enseignement supérieur et à la recherche)

Germany

Section 46 Employment status of professorsProfessors appointed as civil servants (Beamte) shall be assigned the status of civil servants with either limited or unlimited tenure; a probationary period may be prescribed by law.Section 48 Employment status of junior professors(1) Employment of junior professors shall comprise two phases which together should not exceed a period of six years. The tenure of a junior professor shall be extended for the second phase of employment if he or she has proved effective as a teacher in higher education; otherwise, the tenure may be extended for up to one year.(2) Unless otherwise provided in this Act, the provisions pertaining to civil servants with unlimited tenure (Beamte auf Lebenszeit) shall apply, mutatis mutandis, to junior professors who have been appointed as civil servants with limited tenure (Beamte auf Zeit).Framework Act For Higher Education Hochschulrahmengesetz - Hrg 1999 (BGBl. I, p. 18) amended by Act of 27 December 2004 and the decision of the Federal Constitutional Court of 26 January 2005 (2 BvF 1/03) In most Bundesländer the first appointment as professor now is made as a civil servant for a limited period. Following successful evaluation of performance, professors may be granted a civil service position of unlimited duration.]

BavariaBayerisches Hochschulgesetz (2006) (as at 2013)The Central organs of the university area (1) the university management, (2) the Senate, (3) the university council.The rectorate comprises the rector, up to 4 (as specified by the statutes) members (elected by the university council on the proposal of the rector, who may propose professors and 1 wissenschaftlicher Mitarbeiter) and the chancellor. The rectorate is responsible for all matters not assigned to any other organ; it determines the principles for the development of the university and those related to its educational policy objectives, concludes target agreements, decides on principles for evaluation and quality assurance, proposes the budget and executes the latter, distributes allocated funds, proposes the statutes, decides on establishing or closing university units (forming part of the university or a faculty) and appoints and dismisses the directors thereof, decides on proposals for the appointment of professors; the rectorate must point out unlawful decisions, refuse their execution and demand any unlawfulness to be removed; members of the rectorate may take part with consultative vote in the sessions of any organ (except the council); the rectorate may convene any organ (except the council) and preside over sessions thereof; members of the rectorate take part without vote in the sessions of the council; members of the rectorate cannot represent any university member group in any university organThe senate comprises 6 representatives of professors, 1 representative of the wissenschaftliche Mitarbeiter, 1 representative of other staff, 2 representatives of students and the women’s commissioner; the various representatives are elected by, and from, their respective groups, hence, 7 out of 11 members are representatives of academic staff .Senate makes regulations unless some other organ has been authorised in this regard, decides on matters of fundamental importance to research, determines the main areas of research, decides on proposals for setting up or cancelling study programmes, comments on proposals for the appointment of professors and confirms proposals for the external members of the university council;thus: the university council consists of the elected senate members and 10 external members, representing sciences, culture, business and professional practice; the external members are proposed jointly by the rectorate and the minister; proposals need to be confirmed by the senate; the minister appoints external members; hence, 7 out of 20 members are

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representatives of academic staff; the council elects and dismisses the rector and the other members of the rectorate (except the chancellor), proposes candidates for the office of chancellor, decides on the development plan and on proposals to establish or dissolve faculties, setting up or cancelling study programmes, approves the budget, comments on the establishment or dissolution of faculty units, receives the rector’s annual report and must be heard prior to target agreements being concluded

Greece

Art. 16 (2) Professors and associate professors are elected as permanent. The assistant professors are elected for four-year terms, renewable for another term after a negative assessment.Art. 19 1. The selection and promotion of professors at all levels is performed by a special panel of seven, made up of full professors, or if not at disposal, associate or assistant professors.Greek Constitution6. The members of the selection or promotion committee evaluate all candidates, vote and choose the most suitable candidate. They suggest also in a separate vote the second most suitable candidate, if any.7. The dean immediately forwards the record of the selection or promotion to the rector for an assessment of the legality of the process and appointment of the selected person.Higher Education Law (2011) (as at 2012)

Tenure does exist and is protected in the Constitution, but is confined to the highest academic ranks. Academic employment contracts for different ranks are typically as follows: doctoral candidate – fixed term of < 1 year; lecturer– civil servant status– fixed term of > 4 years; assistant professor – civil servant status – fixed term of >4 years; associate professor – civil servant status – permanent tenure; professor – civil servant status– permanent tenure.

The organs of the university are: a) the council, b) the rector and c) the senate.The council comprises 15 members, or 11 (if there are less than 50 teachers in the institution); there are 9 or 7 internal members, 8 or 6 full or associate professors, 1 student representative; 6 or 4 external members. Internal members are elected by all teachers of the institution; external members are elected by the internal members, a majority of four fifths of all of them being required; if the required majority is not obtained, the election is repeated, until an absolute majority of all the internal members is obtained; a representative from the other staff categories may participate (but not vote) when issues relating to that category are addressedThe council is a decision-making and supervisory body which: develops a strategy for the university’s development; supervises the university’s operations; approves the rector’s draft Statutes and Rules; drafts the “agreements programme design”, the annual budget, final accounts, public investment programme and annual report of activities; it may remove deans from office for failure to perform duties by a decision of a majority of three-fourths of all its members;The senate comprises at up to 21 members, but up to 31, where the number of schools of the institution exceeds 8; it consists of the rector, the deans (full professors of a faculty, elected by the teachers and lecturers of the faculty), the heads of departments (up to two per school) (elected from among teachers and lecturers of the department), 1 elected representative each of undergraduates, graduates and doctoral candidates, and 1 representative of the administrative staff and of special categories of teaching and laboratory staff, which are elected by the staff; the size and composition of Senate are regulated by the statutes, which are created by presidential decree, issued on a proposal of the Minister, upon recommendation of the rector, after consultation with the senate and on approval by the council; the specific size and composition of the senate varies between institutions, but it is usual that more than 50% of its members will be academic staff. Senate is an academic decision-making body; it develops the educational and research policy of the institution and

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the policy for quality assurance in education and research; it approves the content of all the courses of the institution; its authorisation is required, where the funds for education or research are managed by a private entity;also the senate is called upon to give its opinion, for example, regarding the statutes (to the rector), the introduction or abolition of curricula (also the rector) or the establishment, abolition, merger or division of schools (to the council)Higher Education Law (2011) (as at 2012)

Hungary

The following scopes of employment may be established in higher education institutions: a) Assistant Lecturer; b) Senior Lecturer; c) University Associate Professor; d) University Professor. The employment of university ... associate professors and university ... professor appointments exceeding one year shall be subject to an open tender procedure. Employment of lecturers shall be terminated if, as of their employment as a lecturer, the given lecturer has failed to satisfy mandatory criteria: a) after a period of 8 years in the case of senior lecturers; b) after a period of 20 years in the case of associate professorsAct on Higher Education (2011) (as at 2013):Most academic staff have civil servant status and tenure is achievable, but may require some time. Employment contracts are typically one of the following forms: assistant lecturer – civil servant – fixed term 1-2 years; senior lecturer – civil servant – fixed term 1-2 years; associate professor– civil servant – permanent tenure; professor – civil servant – permanent tenure. However, it is possible for associate professors to have their contracts terminated, even after 20 years, for failing to meet mandatory teaching and research criteria

The Senate is the supreme body of the h.e.i., and the Rector is its president.Senate has at least 9 members and representatives of lecturers and researchers (including the Senate president) must constitute a majority. The student union representatives comprise between 20% and 25% of senate members; the PhD student union elects one representative; members employed in other jobs and representatives of leading unions may not exceed 5% of the members and must have at least one member; with the exception of the rector, senate members are appointed through elections that are regulated in the operation and organisational manual of the university (this requiring acceptance by the senate); a majority of members of the senate are, therefore, representatives of academic title.

Ireland

A university may suspend or dismiss any employee but only in accordance with procedures, and subject to any conditions, specified in a statute made following consultation through normal industrial relations structures operating in the university with recognised staff associations or trade unions, which procedures or conditions may provide for the delegation of powers relating to suspension or dismissal to the chief officer and shall provide for the tenure of officers.Universities Act (1997)Academic staff members in higher education institutions are public servants and are appointed in accordance with general national employment legislation. Contracts for lecturers may be temporary and for one, three or five years, or they may be permanent with a probationary period of 12 months. Staff at the grade of lecturer must have successfully completed the probation and induction period to be eligible to apply for the award of tenure. All posts above lecturer, (Senior Lecturer, Associate

The majority of members of the academic council are members of the academic staff; details as to numbers, composition, selection and appointment are provided for in a statute; the council must include the senior member of staff having responsibility to the chief officer for each academic discipline, school or department, members from an appropriate range of levels of other academic staff from an appropriate range of academic disciplines and an “appropriate” number of students; the chief officer is ex officio a member of the academic council. The council’s role is to govern academic affairs, and it does not have a remit with respect to (for example) strategic development or financial managementThe functions of the governing authority of a university are: (a) to control and administer the land and other property of the university; (b) to appoint the chief officer and such other employees as it thinks necessary for the purposes of the university; (c) subject to this Act and its charter, if any, statutes and regulations, to determine the membership from time to time of

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Professor, Professor) have tenure. All full time academic staff are civil servants and once tenured, they cannot be fired without a serious cause, such as incompetence or outrageous conduct.

the governing authority,Only 5-11 members of the governing authority (i.e. 25%) are members of the academic staff. The governing authority controls the property of the university, appoints the chief officer, determines the membership of the governing authority, approves the strategic development plan prepared by the chief officer, makes statutes and regulations and may draw up a university charterUniversities Act (1997)

Italy

Universities … may enter into contracts for a period of one academic year, renewable annually for a maximum period of five years; universities may enter into contracts for pecuniary interest, as part of its budget, to meet specific educational needs, also complementary, with persons in possession of adequate scientific and professional requirements. The possession of the title of doctor … preference for the award of these contracts. The contracts are awarded after completion of procedures governed by university regulationsin order to carry out research, teaching, supplementary teaching and services to students, the university may enter into the following types of fixed-term employment contracts: a) contracts of three years which may be extended for only two years, once, after positive evaluation of the teaching and research activities; b) non-renewable three-year contracts, reserved for candidates who have benefited from the contracts referred to in subparagraph a. Within the resources available in the third year of the contract referred to in paragraph 3, letter b), the university assesses the holder of the contract … for purposes of the call in the role of associate professor … In case of a positive result of the evaluation, the contract holder, at the expiry of the same, is seen in the role of associate professor.Higher Education Law (2010)Tenure is possible in Italy, but is getting harder to achieve. The academic career progression path in Italy is as follows: post doc position (assegno di ricerca – usually temporary); Temporary Lecturer (“professore a contratto” for 1 year, renewable for not more than 6 years); “ricercatore tipo A”, have three-year contracts, which may be extended for only two years once, after the successful evaluation of the teaching and research activities carried out; “ricercatore tipo B” posts are reserved for candidates who have already been awarded A-type contracts, or, under certain conditions, research grants (Assegno) or equivalent fellowships. Ricercatore tipo B have three year contracts with no possibility of an extension; after which candidates need to obtain the National Scientific Habilitation to get accredited as “idoneita”; (i.e. “idoneo” employable, or fit for service) by a national committee. Once approved as “candidati idonei”, ricatore tipo B .proceed to the next step and apply for a professore associato position at

State universities have the following governing bodies: 1) rector; 2) Academic Senate; 3) Board of Directors; 4) Statutory auditors; 5) evaluation team; 6) Director General.The senate formulates proposals and opinions in respect to teaching, research and student services and on the introduction of courses and the establishment of organisational units; it comments on the three-year planning document as well as the budget and the financial statement; it approves the university regulations; it may further propose, motions of no confidence in the rector provided two years have elapsed since his appointment. Senate comprises at most 35 members, includes the rector, elected representatives of students and academic staff with tenure (“docenti di ruolo” at least one third of which must be department directors); the docenti di ruolo must constitute at least two thirds of the senate’s members

The board of directors is responsible for strategic planning; it approves the three-year planning document, the budget and the financial statement; it supervises the “financial sustainability” of university activities; it decides on the introduction of courses; it adopts administrative and accounting regulations; it has disciplinary competence in relation to teachers and researchers. The board of directors comprises at most 11 members, including the rector, elected representatives of the students and other components, designated or selected in accordance with rules laid down by the statute; there are external members with expertise in the field of management or professional experience in science and research – not less than 3 if the board is comprises 11 members and not less than 2, when it comprises less than 11 members; there may well be a majority of external members on the board; this depends on the provisions of the statutes regulating the university’s organs; which are approved by the senateHigher Education Law (2010)

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a local university, within a period of four year and are evaluated by the University in the third year of their contracts, and, in case of positive evaluation, upgraded to the role of Associate Professors. Associate Professor (“professore associato”), tenure track (or tenured) must undergo an evaluation 3 years after appointment, in order to be confirmed; Full Professor (“professore ordinario”), the candidate needs to pass a national competition and obtain the National Scientific Habilitation (Abilitazione) after applying to official calls (“concorsi nazionali”) and to pass a competition (concorso) in a University to be hired by a university, but is tenured after a probationary period “Higher Education Law (2010)

Latvia

The staff of a higher education institution comprises: 1) professors, associate professors; 2) docents (senior researcher); 3) lecturers (researcher); and 4) assistants.An employment contract with a person elected to an academic position (professor, associate professor, docent, lecturer or assistant) shall be entered into by the rector for the period of election – six years. Professors shall be elected in an open competition for a time period of six years, and a rector shall enter into a contract of employment with him or her for the whole period of election.Associate professors shall be elected for a time period of six years by a Council of Professors of the relevant subject area.Lecturers: A person who has a doctoral degree or master’s degree may be elected to the position of lecturer … for a time period of six years.Assistants:A person who has a doctoral degree or master’s degree may be elected to the position of assistant … for a time period of six years, and, if they do not have a doctoral degree, they shall be elected not more than two times in succession.All academic staff in Latvian universities are subject to indefinite periodic re-election for periods of six years, but without tenure.Law on Institutions of Higher Education (1995)

The principal governing bodies of a h.e.i. shall be the constitutional assembly, the senate, the rector and the academic arbitration court.The constitutional assembly is elected from academic staff, students and general university staff; the proportion of representatives of the academic staff must not be less than 60% and that of students not less than 20%. The constitutional assembly adopts the constitution, elects and removes the rector, elects the senate or approve compliance of its election with the constitution, elects the academic arbitration court and approves the by-laws of the senate and the academic arbitration court; hence, its function is to elect or supervise the election and to control the mode of operation of the university’s principal governing bodiesThe senate is the decision-making body regarding all the activities of a h.e.i.; its exact competences are to be stated in a by-law; this requires the approval of the constitutional assembly, in which the representatives of the academic staff constitute 75% of the membersThe council of advisors is not a mandatory body. Its task is “to advise” the senate and the rector in strategic matters. It is not considered one of the principal governing bodies of a h.e.i., and is elected by the senate, though the minister may, where appropriate, appoint up to 50% of its members.Law on Institutions of Higher Education (1995)

Lithuania

The staff members of higher education institutions shall be: professor, associate professor, lecturer, assistant.1. Persons shall be accepted to the positions of teaching staff members and research staff members of higher education and research institutions, through an open competition for a five-year term of tenure. The procedure … shall be laid down by the higher education institution,3. With not less than three months remaining before the expiry of the term of tenure of a teaching staff member and research staff member, an open competition shall be announced to fill such position. A person who already holds this position may participate.4. An employment contract of unlimited duration for holding this position

State universities must have the council and the senate, as well as a rector.The council is the principal decision-making body; it approves the strategic action plan, amendments to the statutes, reorganisation of the h.e.i.’s structure and an annual statement of revenue and expenditure, and determines the number of students to be admitted, after having heard the senate in all of these cases; it elects, appoints and dismisses the rectorThe council comprises of 9 or 11 members (as determined by the h.e.i’s statutes): 1 member is appointed by the students, 4 or 5 are appointed by the academic staff, and 4 or 5 are external members selected through a public tender appointed following an assessment by the Higher Education Council; the chairman must be an external member; the rector attends

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shall be concluded with a person who has the second time in succession won the competition to hold the same position of the teaching staff member or research staff member. Performance evaluation shall be carried out every five years in accordance with the procedure laid down by higher education and research institutions. A person who fails the performance evaluation shall be dismissed from the position. Persons shall be accepted to a higher position of a teaching staff member or research staff member by way of an open competition.Law on Higher Education and Research 2009University staff are appointed for five yearly terms, but can be re-appointed for subsequent five yearly terms, via open competition. After two successful contract renewals, the contract then becomes of unlimited duration (i.e. similar to tenure), but personnel are still subjected to five yearly evaluation, and may be dismissed for poor performance

meetings in an advisory capacitySenate is the decision-making body for academic affairs: it approves programmes of studies and research, an internal system of quality assurance, qualification requirements for teaching and research positions etc.; it can express an opinion or make proposals; on the strategic action plan, amendments to the statutes, reorganisation of the h.e.i.’s structure, the annual statement of revenue and expenditure and the number of students to be admitted, before the council makes a final decision; it may present proposals to the rector regarding the funding of programmes and reorganisation of the university structure; the underlined parts show that the senate’s functions have recently been expanded.With respect to the Senate’s composition: professors and chief researchers must comprise not less than 20%, associate professors and senior researchers not less than 20% of members; student representatives not less than 20% of members; there may further be members of the administration of a h.e.i. as well as academic staff members of other h.e.i.s in the senate; the rector is a member of the senate, but may not be its chairman; statutes do not provide that academic staff should comprise a majority of Senate members, but this is likely.Law on Higher Education and Research 2009 (as at 2013)

Luxemburg

Art. 34. Recruitment and nomination(1) The posts of professor and assistant professor are isssued in a series of public announcements. Then at the start of the nomination procedure, the rector sets up, on the recommendation of the Dean of the Faculty concerned, a nomination commission, composed in principle of five members, of whom two at least are from outside of the University. The commission is chaired by the Dean of the Faculty. The members of the commissions hold the rank of professor. The commission is charged with examining the candidates and to propose a grading of the candidates.Art. 35. Duration of Mandates(1) Those nominated are able to be appointed for a maximum period of seven years renewable, or for an indeterminant period.(2) The conditions of appointment as well as those of renewal of mandate of a teacher are as follows: a) their functions are performed in line with professional principles; b) the teaching dispensed and the research projects are at a high level of scientific quality; c) the exercise of their functions is accompanied by a concern for pedagogic excellence.All decisions for renewal or non-renewal are the responsibility of the rectorate on the recommendation of the commission installed under article 34 (1). A decision of non-renewal of mandate is able to be signified by the rectorate at least one year before the end of a mandate for a professor and at least six months before the end of a mandate of another member of the

The University bodies are: a) the governing board; b) the Rector; c) the academic council; d) the Dean.The governing council appoints and discharges the directors of interdisciplinary centres and also professors, drafts and approves the statute and salary scales, decides on the organisational structure of the university and its units, approves the development plan, the draft performance contract and the budget, and supervises compliance with the development plan and the performance contract; the council is the university’s prime decision-making and supervisory organThe governing council has 7 members, of which at least 4 must exercise (or have exercised) university responsibilities; they may not perform any other function within the university; members are chosen for their competence in education and research; they are appointed by the duke on the proposal of the government; decisions require the consent of at least 5 members; the rector, 1 professor elected by the group of university teachers and 1 student elected by the students have a consultative vote on the councilApart from daily management tasks, the rectorate appoints the deans of faculties and also teacher-researchers, drafts the development plan and the budget, proposes the creation of organisational units or the introduction of courses and decides on the admission of studentsThe university council “expresses its opinion” on university matters; it

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academic staff .(3) It is possible to end a mandate of a teacher researcher that seriously fails his professional obligations. The failure is considered by the commission installed under article 34 (1) which constitutes a disciplinary council, conducting the inquiry and appraising the case. The staff concerned are able to hear the council’s findings. The commission proposes to the rectorate or to the council of governance if necessary, the position for the mandate of the teacher/researcher or if necessary other measures instead. The proposed decision must be taken by a majority of the members of the commission.Law Creating the University of Luxembourg (2003) (as at 2013)Posts can be appointed for a maximum of seven years, and may be renewed, or indefinitley. Failure to meet professional standards can lead to mandates being revoked.

comments on the development plan, the draft budget, the creation of organisational units, the introduction of courses and the statute; it may generally make proposals to the rectorate, which is obliged to respondThe university council comprises 2 representatives of teacher-researchers, 2 representatives of students, 1 representative of administrative staff and 1 representative of research assistants for each faculty, elected by the respective groups, further 1 representative of the scientific library staff, elected by library staff, at most 2 directors of interdisciplinary centres, elected by the personnel in the centres, and finally a women’s representative; the percentage of representation of academic staff from the university itself is difficult to predict (at most 60%)Law creating the University of Luxembourg (2003) (as at 2013)

Malta

The Resident Academic Stream is comprises four grades: Professor, Associate Professor, Senior Lecturer, and Lecturer.Entry to the grade of Lecturer or above (and promotion within the Resident Academic Stream) are open to persons with in a Ph.D. or equivalent research based doctorate. All appointments are made by Council for an indefinite period, subject to the statutory probation period, up to retirement age, provided that in certain circumstances and following recommendation by the Department/Faculty concerned the University may fill vacancies by engaging staff on a definite contract for a period not exceeding four (4) years.The Research Stream comprises: Senior Research Fellow, Research Fellow and Research Associate. All appointments within the Research Stream are made by Council on a definite contract basis. The length of the contractual period is determined by the nature of the projects undertaken.Retirement and Tenure - it is agreed that Resident shall have tenure up to retirement.Collective Agreement for Academic Staff Of the University of Malta 2009 ~ 2013Section 33. The Council shall be the supreme governing body of the University and shall have the following functions:(b) to establish and abolish posts of an academic nature or otherwise;(e) to make appointments to posts, of an academic nature or otherwise, in accordance with procedures established by statutesEducation Act 16th April, 1991, Part V Section 33Tenure is possible for staff on academic contracts, following probationary periods. Tenure is not possible for research staff. However, the Concil can abolish academic posts.

the governing bodies of the University: (a) the Council; (b) the Senate (c) the Faculty Boards.The council has 18/19 to 32 members; three are elected by academic staff from those amongst them who are not members of the senate; there are four members representing the senate (only about one third of senate members are required in terms of the law to be representatives of academic staff); there can up to 17 external members on the council.The council is the decision-making body in all non-academic matters; it administers university property, establishes and abolishes institutes, faculties, departments and academic and other posts, appoints heads of departments, makes statutes and determines salary scales (with the approval of the Minister); together with the senate, the council approves plans for the development of a faculty, prepared by the faculty boardThe senate is the decision-making body in purely academic matters; it regulates studies and research, makes regulations, sets the conditions for admission to the university and advises the council on matters of an academic nature; no statute of an academic nature may be made by the council, unless it requests the advice of the senate .Following a decision of the Council, the UoM has 14 faculties, so only 14 out of 40 members of the Seante are guaranteed to be true representatives of the academic staff.Education Act 1988

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Netherlands

the university board of a public institution regulates the legal status of staff and bear the institutional management of a private institution responsible for regulating the legal status of personnel. Regulation of the legal status also include the establishment of provisions regarding the appointment, suspension, disciplinary measures and dismissal of staff..Higher Education Law (1992) (as at 2013)No specific law exists specifying or protecting the right of tenure. However Professors usually have tenure, but this does not mean they cannot be removed from their positions. A professor is a university employee and has therefore all the rights of employees vis à vis his employerAcademic employment contracts in the Netherlands are as follows: post doc – civil servant – permanent; associate professor – civil servant – permanent; professor – civil servant – permanentThe Netherlands also uses so-called tenure track positions. A tenure track position gives a researcher a clear career path for multiple years, where achievement criteria are formulated upfront. Researchers are evaluated at fixed points in time; a positive evaluation will eventually lead to a permanent appointment (tenure). When criteria are not met, candidates are expected to leave the university.Various types of tenure tracks are employed.Associate professor track comprises postdocs who start with a temporary assistant professor appointment, which will be transformed into a permanent associate professor appointment upon a positive evaluation after four/six years.Professor tenure track is a possible continuation on the associate professor track or for externally recruited, talented associate professors, who, upon a positive evaluation, are promoted to professor. The aim is not to enable a permanent contract – as this already exists – but to promote the mobility of talent.in all procedures for a tenure track, the following are stipulated:a. how the process referred to in the first paragraph can lead to employment for an indefinite period of time in an academic position;b. the duration of the process;c. the assessment procedure and assessment criteria;d. the consequences of a positive or negative assessment.4. The decision concerning conversion into permanent employment shall be taken well before the end of the period referred to in the second paragraph under b.

The rectorate (college van bestuur) is responsible for the management of the university; it consists of at most 3 members, including the rector, who are appointed by the supervisory board (raad van toezicht); the senate (universiteitsraad), alternatively the works and the students’ representative council, must be heard before a decision is taken; the statutes are to provide particulars on the appointment of the rector; one of the rectorate members is appointed chairman; members of the rectorate cannot be members of the supervisory council or dean (or member of the management of a faculty)Thus: the supervisory council consists of at least 3 and at most 5 members; members are appointed and dismissed by the minister; one of the members is appointed on the proposals (at least two) of the senate, alternatively the works and the students’ representative council; members may not have “any direct interest with regard to the university” (i.e. they must be external); they must not, however, work in a ministry or be members of parliament; the senate, alternatively the works and the students’ representative council, must be granted the opportunity to comment on the candidates; members of the rectorate attend meetings of the supervisory council and have an advisory voteThe supervisory board is a decision-making and supervisory organ; it approves the statutes, the budget, the financial statements, the annual report and the university plan; it supervises the activities of the rectorate, including whether these are in compliance with the law, the use of funds and the implementation of the system of quality assurance; it appoints and dismisses the members of the rectorate; at the request of the supervisory council, the system of governance provided in the Higher Education Act may be deviated from in one or more respects; the minister is required to consent to any such request; the rectorate must indicate that provision has been made for a purposeful management and self-governance structureThe senate comprise at most 24 members; 50% of the members are representatives of the personnel (academic and other) and 50% of the students, chosen/elected by the respective group; members of the rectorate or the supervisory council and also deans may not be members of the senateThe senate’s consent is required before the supervisory council may take a final decision regarding the university plan, the system of quality assurance, the student statute, the university statute, rules regarding working conditions and the system of self-governance; the senate is entitled to give its advice regarding other matters, including the budget and tuition fees; the senate may make propositions on all matters concerning the university to the rectorate; the rectorate must react to these by preparing proposals; the rectorate prepares rules for the senate, specifying

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amongst others its size and the details of the election of its members; the rules require the senate’s approval; alternatively, the rectorate may, instead of a senate, prefer self-governance in the form of a works and a students’ representative council, based on the law regulating participation of staff in larger size companies or public authorities; the senate’s consent is required before such a system can be installed; if this system applies, a joint meeting of the members of both councils needs to consent to decisions regarding the university plan, the system of quality assurance and the university statute; other competences may be laid down in rules for the joint meeting which the rectorate must draft; the rules must lay down how staff and students are assured equal influence in the joint meetingHigher Education Law (1992) (as at 2013)

Poland

Research and teaching staff comprise: 1) profesor zwyczajnyn, (professor); 2) profesor nadzwyczajny, (associate professor); 3) profesor wizytujący, (visiting professor); 4) adiunkt, (assistant professor); 5) asystent. (assistant);Teaching staff comprise: 1) starszy wykładowca, (senior lecturer); 2) wykładowca, (lecturer); 3) lektor or instruktor. (teacher or instructor);The employment relationship of academic staff is founded on a contract of employment. Only professors shall be employed by appointment. Employment by appointment shall be on a full-time basis. The employment relationship with academic staff in a public higher education institution shall be established and terminated by the rector in compliance with the procedure laid down in the statutes. An appointment can be for an indefinite or for a fixed period of time. The rector may terminate by notice an employment relationship with appointed academic staff in the case of: 1) temporary incapacity due to illness; 2) proceedings being instigated to liquidate the higher education institution concerned; 3) an academic staff member receiving a negative assessment in the performance appraisal; 4) an academic staff member undertaking supplementary employment without the consent of the rector. The employment relationship of appointed academic staff shall expire by virtue of law in the case of: 1) an appointment found to be based on false or invalid documents; 2) a court judgement having the force of res judicata depriving an academic staff member of civil rights; 3) a valid disciplinary penalty depriving an academic staff member of the right to exercise the profession of an academic teacher, permanently or for a fixed period of time; 4) a valid penal measure prohibiting an academic staff member from holding a specific position if the judgement concerns the discharge of the duties of an academic teacher; 5) the expiry of a three-month period of absence from work due to being the subject of a detention order; 6) an academic staff member serving a

the collegial bodies of a public higher education institution are the senate, and the boards of its academic units.Universities can have a senate, but the statutes “may provide for a collegial body other than or instead of the senate”; the provisions of the HEA concerning the senate “may be applied” to the collegial body, as specified in the statutes; statutes are adopted by the senate, by a minimum two-thirds majority of its members; hence, the senate can determine the composition and powers of any such body; the composition of the senate is defined in the statutes; “academic staff, doctoral students, students and non-academic staff shall be represented” in the senate; student and doctoral student representatives must account for a minimum 20% of its membership; in universities, academic staff holding the academic title of “profesor” or the degree of “doktor habilitowany” must comprise more than a half of the membership, but not more than three fifths.Universities may have a council if this is provided for in the statutes; its composition, the method for the appointment of its members and its powers must be laid in the statutes; representatives of state authorities, local government authorities, autonomous professional organisations, learned societies, professional and artistic institutions, employers’ organisations, autonomous business organisations and business and financial institutions “may” be membersLaw on Higher Education (2005)

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sentence of imprisonment or being subject to a restriction on personal liberty; 7) the expiry of the appointment period; 8) the death of the academic staff member.The performance of all academic staff shall be subject to periodical appraisal,conducted at least every four years. An academic staff member holding the academic title of professor who has been appointed to their position, shall be appraised at least every four years. The criteria and procedures for the conduct of the performance appraisal shall be laid down in the statutes.The employment relationship of appointed academic staff holding the position of professor zwyczajny or profesor nadzwyczajny shall expire at the end of the academic year in which they reach the age of 70.Law on Higher Education (2005)Until recently, job security in Polish academia has been very high. Once appointed at the higher public institution, the faculty has had full-time employment more or less guaranteed. It has been very rare that a contract was not extended even if the maximum period for obtaining higher degree was not satisfied.This has changed now and although tenure is possible, professors usually have temporary contracts for 5 years. There is also a specified maximum period to obtain the degree – 8 years for doctoral degree and 9 years for habilitation. When staff enter the academic career whether as an Assistant or Adjunct it is usually on a 1 year temporary contract. Then the contract is renewed either to a permanent or now, more common, for 5-9 years. The maximum time to obtain doctoral degree is 8 years, habilitation 9 years. If the degree is not obtained during this period, the authorities are obliged to discharge the employee.

Portugal

To guarantee their academic and pedagogical autonomy, higher education institutions must have a permanent staff of teachers and researchers who benefit from greater stability in terms of the status of their employment (tenure), under the scales and terms established in the teaching and scientific research career structures. The maximum duration of individual fixed-term employment contracts for research and development projects is established by special law.Higher Education Law (2007)professors and associate professors: (1) professors and associates are contracted indefinitely; (2) If the contract referred to in the previous paragraph is not preceded by an indefinite contract, it has trial period of one year; (3) - Once the trial period is over and following an appraisal performed according to criteria laid down by the legally and statutorily competent body of the higher education institution, the contract shall be for an indefinite period on a tenured basis ..., unless the highest organ of the

Universities are governed by: (a) The General Council; (b) The Rector; (c) The Management Board.The general council comprises of 15 to 35 members; the representatives of the teachers and researchers, who are elected by that group, must constitute more than 50% of the council’s members; the representatives of the students, elected by that group, must constitute at least 15% of the council’s members; individuals “of recognised merit” who do not belong to the institution must constitute at least 30% of the council’s members; these members are co-opted by the representatives of teachers, researchers and students by absolute majority; one of the external members is to be elected the council’s chairman; it is required that decisions on certain matters, e.g. strategic plans, be preceded by an opinion by the external members; the council may include members elected by non-teaching and non-research staffThe council approves alterations to the statutes, elects the rector,

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institution of higher education, based on a proposal approved by a two-thirds majority of the competent body, decides otherwise. 4 - In the case of termination provided for in the previous paragraph, the teacher returns to the position he held before the probationary period under an indefinite contract.assistant professors are hired indefinitely with a trial period of five years, after which, on the basis of a specific evaluation undertaken according to criteria established by the competent body of the institution of higher education and a reasoned proposal approved by a two-thirds majority of that body: a) the contract be maintained indefinitely, or b) [after a further period of six months from that the teacher can, if he so wishes, return to the status he held before the consolidated trial period organised indefinitelyDecree-Law 205/2009, of August 31, amended by Law 8/2010, of May 13 - Statute of the Career of University Higher Education Members of Staff -Staff have tenure but are required to compete for positions. The decision of opening a competition, the ratification of the competition jury’s final deliberations and the final decision of hiring belongs to the highest body of the HEI. In general, tenure as a professor cathedratico may take about two decades to achieve. The career progression path for university staff is as follows: Professor Auxiliars are recruited among the holders of a Doutor degree through an international competition. Auxiliars are hired for an indefinite period, with civil servant status, after a successful probationary period of five years of trial period. Professor Associados are recruited among the holders of a Doutor degree of more than five years’ standing through an international competition. Associados are hired for an indefinite period with civil servant status. If the contract is not preceded by a contract of indefinite duration as professor of the career education staff (or as a researcher of the scientific investigation career staff), they have a one year probationary period Professor Catedráticos are recruited among the holders of a Doutor degree of more than five years’ standing that are also holders of an Agregado title (habilitation). Catedráticos are hired for an indefinite period with civil servant status. If the Catedrático did not have a previous contract of indefinite duration as professor of the career education staff (or as a researcher of the scientific investigation career staff), they have a one year probationary period.Decree-Law 205/2009, of August 31, amended by Law 8/2010, of May 13 - Statute of the Career of University Higher Education Members of Staff

appraises the acts of the latter and proposes initiatives necessary for the proper running of the institution; on the proposal of the rector, it approves the rector’s four-year plan of action, the general guidelines for the institution in the scientific, pedagogical, and financial or asset plan, the annual plan and report of activities, the budget proposals and the annual consolidated accounts; also on the rector’s proposal, it decides on creating or closing organisational units and proposes or authorises the purchase or sale of assets and credit operationsHigher Education Law (2007

RomaniaThe teaching positions in universities are: (a) assistant (asistent universitar); (b) lecturer (lector universitar/şef de lucrări); (c) associate professor (conferenţiar universitar); (d) professor (profesor universitar). The research positions in universities are: (a) research assistant; b) scientific

University governance structures include: a) University Senate and Board of Directors at the university level; b) The Faculty Council; c) The Department Council.The academic staff make up 75% of the Seante. The functions of the

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researcher; c) scientific researcher; d) scientific researcher; e) scientific researcher, Ist degree. Associate teaching staff can hold the following posts: assistant, lecturer, associate professor and professor.The teaching staff can be: permanently employed (“titular”) or associate. The permanently employed (“titular”) teaching staff means the teaching staff that holds a teaching position in the university, obtained after winning the job competition, for an indefinite period in accordance with the law. The teaching and research employees who are employed under fixed-term contracts shall be considered as associate staff. Staff can be hired on a teaching or research position under fixed-term or permanent contracts. Hiring personnel on a permanent contract in a teaching or research position is only possible based on a public competition, organised by the higher education institution, after obtaining a PhD. As an exception from the provisions of the labour law, the duration of a short-term contract is of 3 years at most. As an exception, PhD students may be hired for a fixed-term period of 5 years at most. (5)(5) The conditions for occupying the university professor’s position are the following: a) holding a PhD diploma; b) holding the habilitation certificate;c) complying with the minimum standards for the occupation of university professor’s position, d) complying with the teaching position occupation standards, that are specific to that position, and that must have been approved by the University Senate. The performances of the teaching and research activities of the teaching and research staff in a university are evaluated periodically at intervals of maximum five years. The employment contracts of the teaching and research staff shall also include the assumption of minimum standards of the results of the research and teaching activities, and clauses regarding the termination of contracts if these minimum standards are not complied with.Law of National Education (2011)The fixed-term contracts concluded between the university and the members of the teaching and research staff (that are hired following competitive appraisal) can be extended, following a positive evaluation on the criteria approved by the senate of the university as well as on the staffing needs and the financial resources of the institution, according to the legal provisions in force. The competition for the teaching position of tenured positions is based on the assessment of the conformity with the conditions specific to the teaching position and, for those not coming from higher education, a public lecture delivered to the students in the presence of the competition commission. Staff are evaluated every five years (including by students), and the evaluations are made public.

senate include elaborating and adopting the University Charter; at the rector’s proposal approving the strategic plan of institutional development and operational plans, the structure, the organisation and functioning of the university and further the budget; approving the methodology and the results of competitions for the employment of the research and teaching staff, validating public competitions for positions in the administrative board and controlling the activity of the rector and the board of directors though specialised committeesThe administrative board supports the rector in his responsibilities, such as preparing the budget; it is generally obliged to apply the strategic decisions of the senate; it makes proposals to the senate for the introduction of new educational programmes and the discontinuation of existing ones; it proposes to the senate long- and medium-term strategies of the university; the senate controls the board’s activities though specialised committeesLaw of National Education (2011)

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Slovakia

1) Positions of academic teachers and capacities of “profesors” and “docents” are filled by selection procedure pursuant to …(2) An employee having no scientific-pedagogical degree of “profesor” or “docent” may be employed as an academic teacher based on one competition for a period not longer than five years.(4) An academic teacher who filled the capacity of “docent” or “profesor” on the basis of one competition may do so for a period not longer than five years. If an academic teacher has filled the capacity of “docent” or “profesor” for the third time, with the total term of his office in such capacities at least nine years, and having the appropriate scientific-pedagogical degree of “docent” or “profesor” and, in case of the capacity of “profesor”, the scientific-pedagogical degree of “profesor”, he/she acquires the right for an employment contract with such h.e.i. for the post of academic teacher and appointment to this capacity for a definite period until attaining sixty five years of age.Higher Education Act (1993)Tenure is possible but professors and associate professors are no longer appointed for life, but receive tenure after three re-appointments. Employees without any “profesor” or “docent” degree can be employed as an academic teacher, following competitive appointment for no longer than five years.Academics appointed as “docent” or “profesor” following competitive appointment for no longer than five years, but can be re-appointed. If an academic has filled the capacity of “docent” or “profesor” for the third time, with the total term of his office in such capacities at least nine years, he/she acquires the right for an employment contract with such h.e.i. for a definite period until attaining sixty five years of age.

Section 3 The academic community of a higher education institution is composed of academic teachers and research workers, the other employees of the h.e.i. if stipulated by the statute (employee part), and students of the h.e.i. (student part). Members of the academic community shall have the right to propose [to the senate] candidates for elections to the office of rector.The universities governance structures comprise: (a) the senate of a public h.e.i.; (b) the rector; (c) the scientific board of a public h.e.i.; (d) the disciplinary commission of a public h.e.i. for students.The senate has at least 15 members of which students must constitute not less than one third; for the rest, it is composed of academic teachers and research workers (and other employees, if the statute covers these as members of the academic community); the employee part elects its representatives and the student part its representatives.The senate elects the rector and proposes his appointment to the minister; likewise, it may (sometimes must) propose his discharge to the minister; the senate’s approval is required with regard to various matters presented to it by way of proposal by the rector, e.g., the establishment and dissolution of faculties, the internal regulations of the institution (some presented by the chairman of the senate), the budget (before the board of trustees finally approves it), the annual financial statement, the institution’s long-term strategy or certain acts relating to assets and funds (before the board of trustees finally approves them); the senate must agree with the draft statute of the board of trustees presented by the rector (before the minister finally approves it); the senate must also approve the rector’s proposals for members of the board of trustees (it may itself propose two members) and for members of the scientific boardThe Board of Trustees has largely advisory and supervisory powers, six of the fourteen members are chosen on advice from the Senate and one member may be drawn from the academic staff.Higher Education Act (1993)

Slovenia

The higher education teachers are assistant professor, associate professor, full professor and lector. Scientific employees are scientific employee, senior scientific employee and scientific consultant.Assistant professors, associate professors, scientific employees and senior scientific employees are elected for five years by the senate of the faculty. Full professors are elected by the senate of the university in question for an unlimited time period. Higher education employees are elected by the senate of the faculty for the time period defined by the statute. Prior to election into a higher title the senate of a member of university must acquire a consent of the senate of the university.The procedure for election into the title of higher education teachers,

The University management structures comprise: rector, senate, management board and student council.The University Senate is elected by the senates of the faculties; the senate of a faculty “shall be composed of” university teachers (i.e. assistant professors, associate professors, full professors and lectors (Art. 52)) and, if so provided by the statute, also scientific staff (i.e. those carrying out the scientific-research programme (Art. 53)); the representatives of a university/faculty student council are also members of the university/faculty senate; students “shall have in the senate at least one fifth of its members”; for the rest, the number of members, the method of election and the method of decision-making are to be regulated by statute in accordance

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scientific employees and higher education employees is, according to regulations and criteria for election, defined in detail in the statute of the higher education institution in question.If a higher education teacher, scientific employee or higher education employee does not fulfil scientific or educational duties or the conditions defined for election, the senate relevant for election commences the procedure for withdrawal of the title. In the withdrawal procedure provisions of the election procedure are applicable.Higher education teachers, scientific workers and associates in public higher education institutions are public servants. Their working conditions are determined by the general work code, Civil Servants Act, collective agreements and higher education regulations. Approximately 60% are regular full-time or part-time employees of the higher education institution and 40% are contracted. Among higher education associates about a third are contract workers while two thirds are regularly employed. Higher education institutions decide about appointing titles and determine the requirements for reappointments. The policy of employing higher education teachers, scientific workers and associates is also in their competence. Promotion and advancement in higher education is related to the elected titles. The procedures of election are stipulated in greater detail in the statute of the higher education institution, in accordance with rules and regulations for the appointment. In relation to this, minimum standards for the appointment of a title determined by the National Quality Assurance Agency for Higher Education must be taken into account. Habilitacija (habilitation) is a mandatory requirement in Slovenia, both for entry positions (assistant professor) and to advance in the academic career. Advancement in the academic career takes place through the process of habilitacija (habilitation) once every 5 years until the position of full professorship. The habilitation process’s first step consists of writing an application, which includes the CV, the diplomas as well as a systematised bibliography of the candidate. The university, where the habilitation process is started, nominates a commission (usually this has 3 members, who are Full Professors), which assesses whether the candidate fulfills the minimal requirements for each position – a PhD, a number of relevant publications, teaching and supervisory experience. Job security, once a candidate has been appointed for a permanent position, is basically for life. In theory, the collective agreement distinguishes between light and serious breaches of the contract; and only the latter can lead to the termination of the employment relationship. Among serious contractual breaches, the collective agreement considers the unlawful use or abuse of public property; unjustified underperformance three months in a row; abuse of sick leave and similar. In practice, however, it is very difficult to fire an

with the law and the university act of constitution; the rector is a member of the senate; tasks and responsibilities of the senate are also to be regulated by statute [at any rate, academic body]The tasks, responsibilities, number of members, method of election, mandate term and method of decision-making of the management board are regulated in detail by a statute in accordance with the law and the university act of constitution; there will be representatives of the state, academic and other staff, students and the university on the board; the board is the management authority of a higher education institution; it decide on matters of “a material nature” and takes care of the smooth functioning of the higher education institutionHigher Education Act (1993)

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employee in a permanent professorial position.Higher Education Act (1993

Spain

Hiring Associate Professors shall comply with the following rules: a) The contract may be concluded with specialists of recognised competence attesting their occupational activity outside the academic field. b) The purpose of the contract is to develop teaching assignments through their professional knowledge and experience. c) The contract will be temporary and part-time. d) The contract will be trimestral, semestral o anual and may be renewed for equal periods, subject to further proving the exercise of professional activity outside the academic field.Univerisity Professors comprise the following a) Catedráticos de Universidad; b) Profesores Titulares de Universidad. Teachers belonging to both bodies will have full teaching and research capacity. 2. The teaching and research staff are governed by the provisions of this Act, the provisions laid down within their competence, by the Autonomous Communities, the general law applicable to civil servants and the statutes.Art. 59 Acreditación para Profesores Titulares de universidad1. Holders of a Ph.D. may apply for accreditation as Profesores Titulares ...Artículo 60 Acreditación para Catedráticos de universidad1. Profesores Titulares may apply for accreditation as Catedráticos ...Universities Act 2001Tenure is available to catedráticos and profesores titulares de Universidad, who are civil servants with permanent positions; about 60% of all teaching and research staff are catedráticos and profesores titulares. The post of Profesores Contratados Doctores was introduced in 2001 and is permanent but does not give civil servant status; the number of these new lecturers is still low and it seems unlikely that universities will develop this position because they are more expensive from the perspective of labour regulations.

The university governance structures comprise: social council, governing council; university senate; faculty and school boards and department councils.The social council is a supervisory organ, but also has certain decision-making powers (e.g. approving the budget); it enables society to play a role in university governance; its members are mostly externalThe governing council is the decision-making body on strategic matters (e.g. it prepares the budget and the multiannual programme of the university); article 15.2. lays down requirements as to which single-person authorities are and the proportions of groups of the university community that must be represented in the council, but particulars regarding the body’s relative composition depend on the terms of the statutes; these are prepared by the senate (but requires the approval of the Governing Council of the Autonomous Community); however, it will be essentially internal members on the council; the council also carries out the functions “established by the statutes”The senate is responsible for “the drafting of the statutes, the election of the rector, if applicable, and other functions under this Act”; it is the highest representative body of the university community; a majority of its members shall be “profesores doctores con vinculación permanente”; the statutes govern the membership of the senate, “in which the various sectors of the university community shall be represented”; the statutes are prepared by the senate (but require the approval of the Governing Council of the Autonomous Community); the statutes are required to regulate many aspects of universities in more detail, thus implying that the senate will be able to play an important roleUniversities Act (2001)

Sweden

professor shall be employed until further notice [unless otherwise stipulated in the paragraph below]. Each higher education institution shall itself decide which categories of teachers, apart from professors and senior lecturers, it shall employ and the qualifications and assessment criteria to apply to such appointments.A teaching post may be limited to a fixed term pursuant to the Employment Protection Act (1982:80), if this does not involve appointment as a professor (including adjunct and visiting professor). An adjunct professor shall be employed until further notice for no longer than until a specified date. Such an appointment may be extended. The total period of employment may not, however, exceed twelve years. In other respects the post is subject to the provisions of the Employment Protection Act.A teacher may be employed for a maximum of four years in order that the

The board of governors of a higher education institution supervises all of its operations

Thus: the board of governors is the decision-making body on all strategic matter. The board of governors comprises the chair and 14 other members; the government appoints the chair; the vice-chancellor is a member of the board and may be elected its chairman; teachers and students at the higher education institution are entitled to representation on the board; teachers are entitled to be represented by 3 members, to be elected within the higher education institution; students are entitled to be represented by 3 members; the chair and the other members are appointed by the government on a proposal in

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teacher should be given the opportunity to develop his independence as a researcher and obtain qualifications that can qualify for another teaching position for which there are higher requirements for appointment. The appointment may be renewed if it is that because of the teacher’s sick leave, parental leave or other special reasons additional time is needed to achieve the purpose of the appointment. The total employment may not exceed six years.Higher Education Ordinance (1993)Tenure is possible but difficult to achieve. Promotion of teaching staff in the higher education sector is regulated in the Higher Education Ordinance. A senior lecturer permanently employed at a state higher education institution shall on application be promoted to a permanent position as professor at the institution, if the senior lecturer is qualified for such a position. Corresponding rules apply for promotion from a position as junior lecturer to senior lecturer. Teaching skills are emphasised in the qualification requirements for all categories of teachers. There is a single career track from Adjunkt to Senior Lecturer and from Senior Lecturer to Professor. A PhD graduate or Postdoctoral Fellow can also be appointed to a position as Senior Lecturer, without having been Adjunkt first (although this is relatively rare). In 1999 Sweden introduced a competence promotion system as a academic career structure. This means that once appointed to a permanent position (Adjunkt or Lecturer) one is eligible to apply for promotion to Senior Lecturer or Professor on the basis of individual research competence and teaching skills irrespective of vacant positions. (This also applies for Junior Lecturers who do not hold a PhD degree, and in theory it is possible to be appointed Senior Lecturer and Professor without the PhD degree; but in practice this rarely occurs). Almost all Adjunkts, Professors and Senior Lecturers have permanent posts. Postdoctoral Fellows have temporary contracts and so do part-time teachers, visiting teachers and researchers (forskare). Since 1 January 2011 the individual right to be promoted to professor has been removed from the general university legislation. It is instead delegated to the respective university and the local rules governing employment positions. Usually there is still a possibility for promotion, but the right to be promoted, as [in terms of] the previous legislation is removed.

accordance with Section 7b of the Ordinance, following consultation within and outside the higher education institution; they must be persons with competence and experience in activities that are significant for the institution’s educational and research mandate; staff representatives are entitled to attend and make representations at meetings of the board; there is a majority of external members on the board; the proposal under Section 7b of the Ordinance is made by a nominating group, on which no university staff is represented

There is no express provision for a senate or similar academic decision making body. It is, however, provided that, where educational or research matters are concerned, decisions are to be taken by individuals with academic competence or groups, the majority of members of which have academic competence; however, the board may decide that such a majority is not required if there are special grounds for doing so; students are entitled to representation when decisions are made that have a bearing on their situationHigher Education Ordinance (1993)

United Kingdom

203.—(1) The Commissioners shall exercise the powers conferred by section 204 of this Act with a view to securing that the statutes of eachqualifying institution include—(a) provision enabling an appropriate body, or any delegate of such a body, to dismiss any member of the academic staff by reason of redundancy;(b) provision enabling an appropriate officer, or any delegate of such an officer, acting in accordance with procedures determined by the

124 Art. Constitution and conduct of corporations. (1) For each higher education corporation established on or after the appointed day there shall be an instrument (to be known as the instrument of government) providing for the constitution of the corporation and making such other provision as is required under this section.125 Art.s of government. (1) Any institution conducted by a higher education corporation shall be conducted in accordance with articles of

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Commissioners, to dismiss any member of the academic staff for good cause;(c) provision establishing disciplinary procedures determined by the Commissioners for dealing with any complaints made against any member of the academic staff relating to his appointment or employment;(d) provision establishing procedures determined by the Commissioners for hearing and determining appeals by any members of the academic staff who are dismissed or under notice of dismissal (whether or not in pursuance of such provision as is mentioned in paragraph (a) or (b) above) or who are otherwise disciplined; and (e) provision establishing procedures determined by the Commissioners for affording to any member of the academic staff opportunities for seeking redress for any grievances relating to his appointment or employment.206 Exclusion of visitor’s jurisdiction(1) The visitor of a qualifying institution shall not have jurisdiction in respect of any dispute relating to a member of the academic staff which concerns his appointment or employment or the termination of his appointment or employment.(3) Subsection (1) above shall not be taken to prevent any person who is the visitor of a qualifying institution—(a) from hearing or determining appeals; or(b) from hearing or redressing grievances;in accordance with procedures established in pursuance of section 203(1)(d) and (e) of this Act.Education Reform Act 1988All pre-1992 universities have a statute enabling redundancy, as a result of the 1998 ERA. The following example is from the University of Leeds statutesThis Part of this Statute enables the Council, as the appropriate body, to dismiss any member of the academic staff by reason of redundancy.9. Exclusion from Part II of persons appointed or promoted before 20 November 1987(1) Nothing in this Part of this Statute shall prejudice, alter or affect any rights, powers or duties of the University or apply in relation to a person unless(a) his or her appointment is made, or his or her contract of employment is entered into, on or after 20 November 1987; or(b) he or she is promoted on or after that date.(2) For the purposes of this paragraph in relation to a person, a reference to an appointment made or a contract entered into on or after 20 November 1987 or to promotion on or after that date shall be construed in accordance with subsections (3) to (6) of section 204 of the Education Reform Act

government, to be made by the corporation with the approval of the Privy Council. (2) The articles of government— (a) shall determine the functions to be exercised in relation to the institution by the board of governors of the institution, the principal of the institution and the academic board of the institutionSchedule 7A 3(1) The corporation [governing body] shall consist of— (a) not less than twelve and not more than twenty-four members appointed in accordance with the following provisions; and (b) the person who is for the time being the principal of the institution, unless he chooses not to be a member. (2) Of the appointed members— (a) up to thirteen (… “independent members”) shall be persons appearing to the appointing authority to have experience of, and to have shown capacity in, industrial, commercial or employment matters or the practice of any profession; (b) up to two may be teachers at the institution nominated by the academic board and up to two may be students at the institution nominated by the students at the institution; and (c) at least one and not more than nine (… “co-opted members”) shall be persons nominated by the members of the corporation who are not co-opted members.(3) The co-opted member required by sub-paragraph (2)(c) above shall be a person who has experience in the provision of education.(4) A person (other than a person appointed in pursuance of sub-paragraph (2)(b) above) who is— (a) employed at the institution (whether or not as a teacher); (b) a full-time student at the institution; or (c) an elected member of any local authority, (6) It shall be for the appointing authority to determine any question as to whether any person is qualified in accordance with the preceding provisions of this paragraph for appointment as a member of the corporation of any description or category.4(1) The corporation shall make a determination with respect to their membership numbers.(2) Such a determination shall fix the number of members of each variable category of which the corporation are to consist, subject to the limits applicable in relation to that category in accordance with paragraph 3 above.(3) In making such a determination, the corporation shall secure that at least half of all the members of the corporation, when constituted in accordance with the determination, will be independent members.the Education Reform Act 1988The governing body (corporation) has not less than 12 and not more than 24 members, plus the vice-chancellor (principal) (“unless he chooses not to be a member”); up to 13 members must be “independent members”, who “have experience of, and … have shown capacity in, industrial, commercial

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1988.

The Education Reform Act required all pre-1992 institutions to add a new statute enabling dismissal of staff with tenure, and also removed the jurisdictions of the University Visitor with respect to employment matters. All new staff appointed after the Act did not have tenured contracts. Staff in the post-1992 universities (ex-polytechnics) never had tenure..

or employment matters or the practice of any profession”; up to 2 members may be teachers (nominated by the academic board); up to 2 members may be students (nominated by the students); 1 to 9 members are to be co-opted members (nominated by the non-co-opted members); at least half of the members must be “independent members”; “independent members” may not be employed at the institution, be full-time students at the institution or be elected members of any local authority; the governing body decides on its membership number and the number of members of each category concerned; representatives of the academic staff will not constitute a majority of the members of the governing body; 12 out of 25 or 6 out of 13 members could be academic staff, but there could also be none

Pre-1992 universities are governed by their statutes, which vary between individual institutions. The following statutes are from the University of LeedsI. The University CouncilA. The University Council (hereinafter called the Council) shall consist of the following persons, namely:• The Chair of Council and the Vice-Chancellor• One representative of the Clothworkers’ Company of London• Four members of Faculties to be elected from such constituencies

and under such regulations as may be determined from time to time by the Council on the advice of the Senate

• Two members of support staff to be elected from such constituencies and under such regulations as may be determined from time to time by the Council

• Two students to be chosen in such manner as may be determined from time to time by the Council

• Twelve members, not being students of the University or members of Faculty, to be appointed by the Council, provided that at any time at least four of the fourteen lay members of the Council shall be alumni (as may be defined from time to time under ordinance).

II. Powers of the CouncilA. Subject to the provisions made in the Charter and Statutes, the powers of the Council as a governing body of the University shall include the following: To nominate the Chancellor. To appoint the Pro-Chancellor and as appropriate, the Chair of the Council, and deputy pro-chancellors. To appoint the Vice-Chancellor and, where necessary, to propose his or her removal from office in accordance with the provisions of Statute VII. To approve recommendations for appointment to the lay membership made by the appointing committee. To remove from the membership of Council any other member on the grounds of a substantial failure to discharge his or her

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duties without good cause, including persistent failure to attend meetings, or following disqualification for acting as a charity trustee. To elect – and where appropriate remove from office – the Secretary to the University for such periods and under such conditions as may be determined by the Council after consultation, as appropriate with the Senate. To draft Statutes and Ordinances as and when it sees fit. Provided that any Statute or Ordinance relating to courses of study shall not be adopted without giving the Senate the opportunity of reporting thereon. To make regulations for any purposes for which regulations are or may be authorized to be made. To govern, manage, and regulate the finances, accounts, investments, property, business, and all affairs whatsoever of the University, and for that purpose to appoint bankers, deputy treasurers, and any other officers or agents whom it may seem expedient to appoint. To invest any moneys belonging to the University, including any unapplied income in such stocks, funds, fully paid shares or securities as the Council shall from time to time think fit, whether authorized by the general law for the investment of trust moneys or not, and whether within the United Kingdom of Great Britain and Northern Ireland or not or in the purchase of freehold, or leasehold hereditaments in the United Kingdom including rent charges, or chief rents, with the like power of varying such investments from time to time by sale and reinvestment or otherwise. To borrow moneys on behalf of the University. To sell, buy, exchange, lease, and accept leases of real and personal property on behalf of the University. To provide the buildings, premises, furniture, and apparatus and other means needed for carrying on the work of the University.The University Council is the ulrtimate decision making body. The Council has 23 members, of which only four are from the academic staff.The SenateThe Senate is responsible to the Council for academic governance and especially for regulating:

. the admission of students

. the curriculum

. academic standards

. the award of degrees and other qualificationsThe Senate, which is chaired by the Vice-Chancellor,consists of more than 160 members including academic staff and student members. In addition to its responsibility for academic governance, the Senate has an advisory role extending across most aspects of university workThe CourtThe University Court has about 90 members (the majority of whom are lay), and is chaired either by the Chancellor or, in her/his absence, the Pro-Chancellor. It is not involved in the University's decision-making processes,

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but it plays an important and influential role: in a nutshell, the Court is an important link with the community and other stakeholders, fostering engagement, responsiveness and accountability.The Court’s mission is to serve ‘as mechanism for – and a symbol of – the University’s accountability to the wider community’. It is empowered to ask questions about, and express an opinion on, any matter whatsoever concerning the University; and to convey such opinions to the Council, and can thus invite the Council (or other University bodies) to consider particular questions or courses of action. It meets at least twice a year: a formal, minuted, ‘business’ meeting occurs in December, whereas other ‘engagement’ events are intentionally informal.

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Table 4 UNESCO Analysis: compliance assessment example Are the institutions legally autonomous?

Is academic freedom protected either in the constitution or in law?

Do the academic staff elect the majority of representatives to decision making bodies?

Does academic tenure exist?

Compliance

EstoniaConstitution of 28th June 1992 Article 38: (2) Universities and research institutions shall be autonomous, within the limits prescribed by law

Czech RepublicThe Higher Education Act No. 111/1998 (Amended And Consolidated up to Act No. 624/2006) Section 4: Academic Freedoms and Academic Rights. The following academic freedoms and rights are guaranteed at higher education institutions: a) freedom of scholarly, scientific, research and artistic activities as well as publication of the results thereof;b) freedom of teaching, in particular with regard to openness to different scientific and scholarly views, scientific and research methods and artistic movements;c) the right of learning, which includes the free choice of specialization within the framework of degree programmes as well as the freedom to express one’s views during classes;d) the right of members of the academic community to elect their representative academic bodies;e) the right to use academic insignia and to hold academic ceremonies.

LatviaLaw On Higher Educational Establishments, Consolidated 3 June 2004 Section 13. Constitutional Assembly(1) The Constitutional Assembly is the highest collegial representation and management body and decision-taking body authorised by an institution of higher education. The Constitutional Assembly shall be elected by secret ballot from: (a) professors and other academic staff; (b) students; and (c) other staff groups.(3) The proportion of representatives of the academic staff in a Constitutional Assembly shall not be less than 60 per cent and the proportion of students – not less than 20 per cent.

PolandHigher Education Law 2005. Article 121 (2) Appointment shall be for an indefinite or specific period of time. Article 127: 1. The employment relationship of appointed academic staff shall expire by virtue of law in the case of: 1) an appointment found to be based on false or invalid documents; 2) a valid court judgement depriving an academic staff member of civic rights; 3) a valid disciplinary penalty depriving an academic staff member of the right to practise the profession of academic teacher either permanently or for a specific period of time; 4) a valid penal measure prohibiting an academic staff member from holding a specific position if the judgment imposing the measure concerns the performance of duties of an academic teacher; 5) the expiry of a three-month period of absence from work due to preventive detention; 6) an academic staff member serving a sentence of imprisonment or restricted liberty; 7) the expiry of the appointment period; 8) the death of an academic staff member. 2. The employment relationship of appointed academic staff holding the position of professor zwyczajny (full professor) or profesor nadzwyczajny (university professor) shall expire at the end of the academic year in which they reach the age of 70.

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Are the institutions legally autonomous?

Is academic freedom protected either in the constitution or in law?

Do the academic staff elect the majority of representatives to decision making bodies?

Does academic tenure exist?

Qualified Compliance

Not Applicable GreeceConstitution 11 June 1975Article 14: (1) Every person may express and propagate his thoughts orally, in writing and through the press in compliance with the laws of the State.(3) The seizure of newspapers and other publications before or after circulation is prohibited. Seizure by order of the public prosecutor shall be allowed exceptionally after circulation and in case of:(a) an offence against the Christian or any other known religion.(b) an insult against the person of the President of the Republic.(c) a publication which discloses information on the composition, equipment and set-up of the armed forces or the fortifications of the country, or which aims at the violent overthrow of the regime or is directed against the territorial integrity of the State.(d) an obscene publication which is obviously offensive to public decency, in the cases stipulated by law.Article 16: (1) Art and science, research, and teaching are free and their development and promotion constitutes a state obligation. Academic freedom and the freedom to teach do not override the duty to obey the Constitution

LuxembourgA – N° 149: Law of 12 August 2003 Section I: The Governing Council: Art. 18. Functions determines the University's general policy and strategic choices and exercises control over the University's activitiesArt. 19. Composition and Function(1) The Governing Council comprises seven members of which four or more have exercised university responsibilities. The members of the Governing Council are not able to exercise any other function close to the University. They are chosen on the basis of their competence in the large areas of teaching and of research developed in the university, and they are nominated by the Grand Duke on the recommendation of the Government in council.Section 3 The University Council. Art. 26. Functions: The university council assists the Rectorate in drawing up the development plan and, through its decisions, it determines the University's educational and scientific affairsArt. 27. Composition: The university council is composed of: a) Two representatives of the teachers/researchers per faculty elected by the teachers/researchers; b) two representatives of the students per faculty elected by the students; c) one representative of the administrative and technical personnel per Faculty, elected by the administrative and technical personnel; d) a representative of the teaching and research assistants in each faculty, elected by the personnel of the teaching and research assistants in each faculty; e) one representative from the library, elected by library personnel; f) two directors of interdisciplinary centres, elected by those working in interdisciplinary centres; g) a delegate for the promotion of women.

LithuaniaLaw On Higher Education 21 March 2000 No.Viii-1586 Article 31. Procedure for Appointment to the Positions1. Positions of higher education establishment teachers and research workers shall be occupied by way of open competition for a period not longer than five years (term of office).2. Two months before the termination of the term of office of a higher education establishment teacher or research worker, an open competition shall be announced for holding such position. The person who holds that position may also take part in such competition.3. If a professor wins a competition for the third term of his office, he shall acquire the right to hold to hold this position in that higher education establishment without any competition until he reaches the age of 65 years.4. By the decision of the senate (academic council), an extraordinary performance evaluation of a higher education establishment teacher or research worker may be carried out. The higher education establishment teacher or research worker who receives a negative performance evaluation, shall be dismissed in accordance with the procedure established by law.

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Are the institutions legally autonomous?

Is academic freedom protected either in the constitution or in law?

Do the academic staff elect the majority of representatives to decision making bodies?

Does academic tenure exist?

Non-Compliance

DenmarkAct on Universities May 28 2003Part 2 Degree Programmes3. -(1) The university is free to decide which research-based degree programmes it wants to offer within its academic scope. Pursuant to section 4 (1 (articles 1 and 2)) and section 5 (1) of this Act, the degree programmes offered by the university shall be subject to the approval of the Minister of Science, Technology and Innovation. (2) The Minister may revoke the approval of a programme offered pursuant to subsection (1), if it is no longer necessary for the university to offer the programme concerned, or if the programme no longer lives up to the high standard of quality applicable at all times to research-based education.(2) The Minister lays down the rules concerning the acquisition of the doctoral degree. 7. Subject to the approval of a second Minister, the university may offer programmes in accordance with rules laid down by the Minister concerned.8. The Minister lays down general rules governing education, including grading and quality development, cf. sections 4 and 5, on the titles connected to education, and cf. section 6 on admission requirements.Part 3 Governance Regulations (8) The Board shall enter into a performance contract with the Minister.

U.K.Education Reform Act 1988 202 (1) There shall be a body of Commissioners known as the University Commissioners who 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; (b) to enable qualifying institutions to provide education, promote learning and engage in research efficiently and economically; and (c) to apply the principles of justice and fairness. [The protection under the Act was granted only to staff in universities established before 1992, moreover the last Statutory Instrument, (No. 604) which confirmed the powers and duties of the University Commissioners until 1st April 1996, was issued in 1995, none has been issued since.]

DenmarkAct on Universities May 28 2003 10 (1) The Board is the highest authority of the university. 12 (2): The Board shall be composed of external members and members representing the academic staff of the university, which includes PhD students with university contracts, the technical and administrative staff and the students. The Board shall comprise a majority of external members. The Board shall elect a chair from among its external members.

U.K.Education Reform Act 1988 para 203the statutes of each qualifying institution include—(a) provision enabling an appropriate body, or any delegate of such a body, to dismiss any member of the academic staff by reason of redundancy

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Table 5 UNESCO “Top Down” Analysis: Summary Table

Are the institutions legally autonomous?

‘Is academic freedom protected either in the constitution or in law?

‘Do the academic staff elect the majority of representatives to decision making

bodies?

Does academic tenure exist?

Bulgaria Compliance Compliance Compliance ComplianceCzech

Republic Compliance Compliance Compliance Compliance

Finland Compliance Compliance Compliance ComplianceGreece Compliance Compliance Compliance CompliancePoland Compliance Compliance Compliance Compliance

Slovenia Compliance Compliance Compliance ComplianceSpain Compliance Compliance Compliance Compliance

Hungary Compliance Qualified Compliance Compliance ComplianceIreland Compliance Compliance Qualified Compliance Compliance

Italy Compliance Compliance Compliance Qualified ComplianceLatvia Compliance Compliance Compliance Qualified Compliance

Lithuania Compliance Compliance Compliance Qualified CompliancePortugal Compliance Qualified Compliance Compliance ComplianceRomania Compliance Qualified Compliance Compliance ComplianceSlovakia Compliance Compliance Compliance Qualified ComplianceAustria Compliance Compliance Qualified Compliance Qualified ComplianceBelgium Compliance Qualified compliance Qualified Compliance ComplianceEstonia Compliance Qualified Compliance Compliance Qualified ComplianceFrance Compliance Compliance Non Compliance Qualified ComplianceSweden Compliance Qualified Compliance Non Compliance ComplianceGermany Compliance Qualified Compliance Qualified Compliance Qualified Compliance

Luxembourg Compliance Qualified Compliance Qualified Compliance Qualified ComplianceNetherlands Compliance Qualified Compliance Non Compliance Qualified Compliance

Cyprus Non Compliance Qualified compliance Non Compliance ComplianceMalta Compliance Non Compliance Qualified Compliance Non Compliance

Denmark Non Compliance Qualified Compliance Non Compliance Qualified ComplianceUnited

Kingdom Compliance Non Compliance Non Compliance Non Compliance

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Table 6 Measures used for composite “bottom-up” analysis Measure 1 Legal and Constitutional Protection for teaching and researchMeasure 2 Legal and Constitutional provision for institutional autonomyMeasure Internal operation of autonomy:(3) Rector’s Appointment (4) Internal Structures(5) State Funding(6) Commissioned Research(7) Staff Appointments(8) Student Recruitment(9) Degree AccreditationMeasure 10 State regulation of university autonomyMeasure 11 Private sector constraints on autonomyMeasure 12 Legal provision for self-governance:Measure Operational self-governance:(13) Existence of Collegial Bodies(14) Composition of Collegial Bodies(15) Composition of Senate(16) Strategic Decision MakingMeasure Staff powers of appointment and dismissal(17) Dean’s/Head of Department’s Credentials(18) Appointing the Dean/Head of Department(19) Dismissing the Dean/Head of Department(20) Rector’s Credentials(21) Appointing the Rector(22) Dismissing the RectorMeasure Protection for academic tenure and promotion: (23) De Jure Protection: Duration of contracts(24) De Facto protection: Duration of contracts(25) Provision for contract termination in h.e. legislation (26) Provision for contract termination in other legislation(27) The provision for academic advancementMeasure Constitutional protection for academic freedom(28) Provision on freedom of speech(29) Provision on academic freedom(30) Reference to institutional autonomy(31) Reference to self-governance(32) Robustness of provisionsMeasure International protection for academic freedom(33) ICCPR (free speech provision)(34) OP-ICCPR (complaints procedure before UN)(35) ICESCR (right to education provision)(36) OP-ICESCR (complaints procedure before UN)(37) ECHR (free speech provision)

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Table 7 “Bottom-Up” Analysis: Summary Table

Country Total Academic Freedom in Legislation

Institutional Autonomy in Legislation

Self-Governance in Legislation

Job Security Constitution & International Agreements

Croatia 69.0 20.0 13.0 14.0 4.5 17.5Spain 66.5 15.0 8.5 12.0 11.0 20.0Bulgaria 65.5 15.0 9.0 14.5 9.5 17.5Germany 64.5 17.5 9.25 12.25 8.0 17.5Austria 63.5 20.0 12.0 9.0 5.0 17.5France 63.0 20.0 7.0 6.5 15.5 14.0Portugal 61.0 10.0 9.0 11.5 10.5 20.0Slovakia 60.5 20.0 8.5 12.5 1.5 18.0Latvia 60.0 20.0 10.0 10.5 3.0 16.5Lithuania 59.5 20.0 11.0 6.0 5.0 17.5Italy 57.5 10.0 9.0 8.0 11.5 19.0Greece 55.5 5.0 4.5 10.5 20.0 15.5Finland 55.0 15.0 15.0 3.0 3.0 19.0Poland 54.5 10.0 9.5 12.5 5.0 17.5Romania 53.5 15.0 8.0 12.5 5.5 12.5Cyprus 53.0 10.0 8.0 12.5 10.0 12.5Ireland 52.5 15.0 12.5 3.0 10.5 11.5Slovenia 52.5 5.0 8.5 11.0 10.5 17.5Czech Republic 51.5 15.0 8.0 11.0 2.0 15.5Belgium 49.25 10.0 8.5 7.5 9.25 14.0Luxemburg 47.5 15.0 9.0 6.0 3.5 14.0Netherlands 44.0 10.0 9.0 5.5 3.5 12.5Sweden 39.5 5.0 6.5 3.0 8.5 16.5Denmark 38.5 5.0 9.0 6.5 5.5 12.5Hungary 36.0 5.0 2.5 9.0 8.0 11.5Malta 36.0 0.0 10.5 6.0 8.5 11.0United Kingdom 35.0 5.0 13.5 0.0 5.5 11.0Estonia 34.0 0.0 10.5 4.5 1.5 17.5Mean (St Dev) 52.8 (10.5) 11.9 (6.3) 9.3 (2.6) 8.6 (3.9) 7.3 (4.3) 15.6 (2.9)

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