Higher Education (Freedom of Speech) Bill

Lord Sikka Excerpts

Report stage
Wednesday 7th December 2022 Lords Chamber

Moved by

[Lord Sikka]

23: After Clause 4, insert the following new Clause—
“Research grant funding and academic integrity
After section A7 of the Higher Education and Research Act 2017 (inserted by section 4) insert—“A8 Research grant funding and academic integrity(1) The provision of grant funding for research shall not be used as a means of interfering with the freedom for academics—(a) to publish and disseminate their research; or(b) to decide on the final form and academic integrity of such research.(2) Unless the conditions in subsection (3) apply, no contractual or other provision in a funding agreement that gives editing or publishing control to the funder shall be enforceable by law.(3) The conditions referred to in subsection (2) are— (a) that a court finds the full publication of the research would threaten national security, public safety, or health; or(b) the contracting parties to a research funding arrangement agree confidentiality of results in advance.””Member’s explanatory statement
This amendment reduces the ability of public, private or philanthropic funders of academic research to infringe upon academic integrity and the freedom to publish results. Contractual attempts at interference with academic expression will be unenforceable, unless confidentiality of research was agreed in advance or where a court finds a national security, public safety or health justification for preventing publication.

[Lord Sikka (Lab)]

My Lords, I am grateful to the noble Lord, Lord Moylan, the noble Earl, Lord Lytton, and the noble Baroness, Lady Bennett of Manor Castle, for their support for this amendment. I raised the subject of academic integrity and freedom to disseminate research findings at Second Reading and in Committee. Several important issues were raised, and this amendment has been extensively rewritten in light of that. I believe that it now complies with Article 10 of the ECHR.

The revised amendment prevents the gagging of academics by research funders who do not like the findings. However, the right to publish research is also constrained by my amendment’s proposed new subsection (3), which basically states that, if the research findings would

“threaten national security, public safety, or health”,

they need not be published. They also would not if

“the contracting parties to a research funding arrangement agree confidentiality of results in advance.”

Major issues were raised during the last debate, and I will address them.

In Committee, I provided examples of how the Government themselves suppressed Covid-related research findings, for which we are yet to receive a full explanation. The research was funded by public money and did not threaten national security or public safety, but it was still suppressed. The publication of that research could have provided insights into the cost of Covid tests and of controlling the pandemic, and possibly have helped to frame more effective public policies.

I also cited examples of the tobacco and food industries censoring or preventing the dissemination of research. The unhindered publication of academic research would have created greater awareness of the dangers of smoking and the ill effects of processed food, and, again, this may well have enabled the development of more informed public policies.

Research showing that generic drugs are just as effective as branded drugs would have reduced the cost of medical treatments, as well as the cost to the NHS. In Committee, it was suggested that my amendment was somehow not appropriate for the Bill, and that transparency was a key issue. I will tackle that head on because I am happy to respond to these points. The amendment is about academic freedoms, and the clue is in the title of the Bill, which includes the words “Freedom of Speech”. Advancing and protecting the academic freedom to publish uncensored research is directly relevant to it; there is no other Bill where these kinds of issues can go at the moment. The point about transparency is important, but the unhindered publication and dissemination of research is the best form of transparency.

Over the years, I have been on many academic journal editorial boards, so I am well aware of the politics of publishing and commissioning research and so on. All reputable peer-reviewed journals require authors to disclose sources of research funding and to make the relevant data, wherever possible, available to other scholars. However, that point can be reached only when a scholar submits a paper for publication. If research funders supress the findings, a submission to a journal does not take place, and the data cannot be provided easily to other scholars—you need not necessarily disclose who the funders are, because that point is not reached. If research findings are diluted by the funder, the researcher has the option whether to accept the diluted paper and proceed to publication or not. If the researcher chooses not to proceed to publication, there will be no transparency about funding at all. If the researcher succumbs to pressure from the funder and accepts the dilution of research outcomes, he or she is unlikely to be permitted to say that the funder rewrote or took out large chunks of the paper. So there is no transparency about the pressures which prevent the publication of the paper, which is what I am really concerned about.

Of course, there are numerous research registers which list the grants obtained by scholars, but a mere listing of the source does not amount to transparency because it does not tell us anything about the gagging of those researchers or prevention of their publication. Just naming the funders does not tell us about the contents of the research, research methods, research methodology, analysis, discussion or possible public implications.

Full transparency, which is what I am concerned with, covers all those things, and that can be provided only by publication of the research, not permitting funders to say that you cannot publish it because, somehow, they now feel that it would damage their reputation or reduce the revenues arising from the sale of tobacco-related products or processed food. Gagging comes in many guises; it is not simply somebody saying that they will not let you publish—they behave in all kinds of interesting or strange ways.

I shall give a personal example. For a long time, I have taken an interest in auditor regulation. Under the Companies Acts, a resigning auditor is required to issue a statement addressed to shareholders and creditors stating whether there are circumstances in connection with that resignation that shareholders and creditors need to be aware of, then to list them, or to say that there are no circumstances and leave it at that. What do the auditors actually do? I conducted the only piece of research on that over the past 100 years, and I looked into it. I learned that Companies House does not publish the data, but on inquiry it said that it could write a piece of software for me, interrogate its database and tell me which company auditors had resigned. This was in relation to public limited companies. In those days you had to buy microfiches, so I would have had to buy the microfiches and track down whether there was a letter of resignation from the auditor.

I got the data and approached the Institute of Chartered Accountants in England and Wales and asked whether it would help to fund the cost of writing the software and buying microfiches. I got the grant, and I looked at all 800 auditor resignations relating to public limited companies. What did I find? Only 2.5% of the resigning auditors complied with the law. The other 97.5% were silent; they did not say anything. But roll forward a few months and I started looking—and what do I find? In many instances, the auditors got out quietly but there was a scandal, with major frauds and other kinds of corporate collapses, which suggested that the auditors had basically abdicated their duty. They did not want to say anything or get a bad name for being troublesome, which is not very helpful for getting new audits or consultancy work.

I submitted my report to the Institute of Chartered Accountants in England and Wales, which said that it would get back to me. That is what is required—you submit a report. Would it say that I could go ahead to publish or say that I could not? It said neither yes nor no, and meanwhile the research was getting stale, and I had to make a decision. Was it important enough for people to know what auditors were up to, or should I just be quiet? I decided that I would publish the research, and it was published as a research monograph. Needless to say, I never got a research grant from the ICAEW again. The public suffers.

That is just one example of how people are gagged. Not everybody wants to follow their conscience and just publish. What I am trying to do through this amendment is to empower academics so they can publish research that is vitally important. There is nothing in the Bill that prevents gagging of scholars through subtle or not so subtle forms of silencing. We all see the world by standing on the shoulders of intellectuals. The barriers to publication of research prevent us seeing things, and this amendment would lower those barriers. I beg to move.

[Lord Moylan (Con)]

My Lords, I speak in support of Amendment 23 in the name of the noble Lord, Lord Sikka. I said at Second Reading that there was a lacuna in this Bill, in that it did not deal with finance and money. Finance, of course, is what makes the world go round, and the scope for using money to limit freedom of expression and academic freedom is obvious. It hardly needs to be explained. So why would a Bill that addressed academic freedom not deal with this question of money and its potential abuse?

Quite independently of the noble Lord, Lord Sikka, in Committee I tabled three amendments trying to cover such aspects as the use of donations, the use of research grants and a couple of other matters which I thought were worthy of debate. Independently, the noble Lord, Lord Sikka, tabled an amendment much along the lines of the one he has just spoken to. As we proceed to Report, I have dropped mine, but the noble Lord has refined the drafting of his amendment considerably, and it is now a very good amendment and one that I think deserves a response. Sadly, in Committee, I do not feel it had quite the response or the engagement from either Front Bench that this important topic deserves.

--- Later in debate ---

[Earl Howe (Con)]

My Lords, Amendment 23 tabled by the noble Lord, Lord Sikka, seeks to ensure that the provision of grant funding for research does not interfere with the academic’s freedom to edit and publish their research. The only exceptions would be if there was a confidentiality agreement between those giving and receiving the grant made in advance or if a court finds that full publication would threaten national security, public safety or health.

The noble Lord is of course right to be concerned about the provision of grant funding for academic research and, as he acknowledged, we discussed this issue in Grand Committee, although perhaps not conclusively. The approach in the Bill is to place duties on registered higher education providers, their constituent colleges and student unions. I have to say that it goes too far to place duties on others, such as those who give grant funding, and I am also not at all comfortable with the idea of interfering in the private contractual arrangements between parties, which would be the effect of this amendment.

If an academic wishes to seek grant funding, it is for them to agree with the other party what contractual arrangements should apply. That is in fact reflected in proposed new subsection (3)(b) of the noble Lord’s amendment and reflects the Haldane principle: that decisions on individual research proposals are best taken by researchers themselves through peer review—a principle enshrined in the Higher Education and Research Act 2017.

However, in my view it would go too far to require legal proceedings to determine whether full publication of research would threaten national security, public safety or health. First, those are extremely limited reasons, which I appreciate is the noble Lord’s aim, but there may well be other legitimate reasons why the grantor would not want full publication. Secondly, this would potentially open the door to costly and time-consuming litigation. I fear that this may have a chilling effect on grant funding if it deters grantors, which is obviously not desirable; it may also affect the academic, as a potential party to the litigation, who is likely not to have the means to fund their part in it. It does not seem to me that the involvement of the courts in such a matter is appropriate.

Noble Lords have suggested that there is a lacuna as regards transparency in the domestic funding of higher education. I hope that I can allay that concern very simply. The Higher Education Statistics Agency collects data about research grants and contracts, which is publicly available. The OfS collects data that it needs to support its functions, including ensuring that providers are financially sustainable, and publishes this through annual reporting.

Given those points, I hope that noble Lords will agree that this amendment is not necessary.

[Lord Sikka (Lab)]

I am grateful to the Minister and all the other participants in this debate for the vital points that they have made. This amendment is not about sources of funding. It is about the ability to disseminate research findings when the funder decides that the outcomes are not what they were looking for but are of vital interest to other stakeholders. It is when those findings are suppressed that I am really concerned about. I gave an example from my personal experience but, if you met academics on the conference circuit, many of them would tell you similar kinds of stories. That issue remains, and I do not see anything in the Bill to address it.

I am grateful to the noble Lord, Lord Wallace of Saltaire, for his comments but I do not think that this is an issue of codes of practice. Codes of practice cannot bridge asymmetric power relationships. The more powerful are going to define the codes of ethics; they do not give anybody any enforcement rights. You cannot go to a court and say, “I want to enforce a code of conduct”, because no law of any kind has been breached. There are issues around adjudication and enforcement. Before long, we will come back to the need for a legal framework.

I am also not convinced by the argument that it is up to the institutions. What can universities do? They are hungry for external money, and will persuade and pressurise academics to get it. Beyond that, they are not really interested in how the academic negotiates publication. They cannot deal with that. Then the academic is left on his or her own versus what the funder desires. Academics may well have spent a long time on their research but they will have nothing whatever to show in terms of any publications, dissemination or conference presentations. They are left on their own versus a very powerful provider of research. The Bill does not do much on this issue either.

The Minister said that this amendment could have a chilling effect on research grants. I do not see how. Let us say that two parties want to negotiate on some blue-sky thinking, develop some new technology to manufacture engines or whatever, and want to consult an academic. If it is agreed that this kind of research would be confidential, that is fine. Nobody is interfering with that. The point is about what your research findings show. For example, imagine somebody is looking at the effects of living in poor housing and suddenly discovers that a two year-old child is breathing mould and is therefore likely to be disabled for the rest of his life. What should they do? Should they be quiet? At the moment, they can be silenced by the landlord. I am giving people freedom. I am saying that they should have the freedom to communicate that living in those kinds of housing conditions is damaging and can kill people. However, the response I am getting from both Front Benches is, “We can’t have that”. That is unacceptable. People reading this debate will see that it is unreasonable. How will we eradicate the conditions that I have just described for people living in poor housing? I have not heard anything in this debate to offer me any comfort on this point.

Nevertheless, I am grateful to noble Lords. Since both Front Benches are opposed to my amendment, or at least do not fully support it, I have no choice but to withdraw for the time being. However, as and when an opportunity arises, I shall return on this issue.

Amendment 23 withdrawn.