Go back

The real freedom of speech issue

Chris Skidmore calls for a review of universities’ misuse of non-disclosure agreements

I am a friend of universities. I may not have made public declarations of love like some of my predecessors—that’s not my style—but when it comes to recognising the value of our higher education institutions and their integral role in society, I’m a believer.

That doesn’t mean I believe that there is no room for improvement. If I’ve learned anything about the higher education policy world, it is that the obsessive dedication to improving the university experience in all its forms drives myriad—too many, perhaps—policy initiatives across the sector.

One can be a critical friend of UK higher education and still hope for its continued success. Indeed, criticism from outside higher education shouldn’t always be perceived as a veiled threat or an ‘attack’; sometimes, it should be seen as a willingness to help universities engage better with public policy debates or growing issues of concern. A critical friend should be able to point out a direction that one might want to take rather than continuing along the wrong path.

Reputational damage

Take the familiar debate on vice-chancellor pay, for example, which continues to be an issue thanks to some recent eye-watering payoffs. The reputational damage to certain institutions over their leadership remuneration policies (or lack thereof) will take years to repair but could have easily been avoided if warnings had been heeded earlier.

Strong self-governance is a crucial part of institutional autonomy, yet this kind of issue remains more relevant than ever given that, through fee reform and the ever-escalating Resource Accounting and Budgeting charge, the taxpayer is now publicly perceived as the major shareholder in university institutions. All university expenditure is now judged as being, rightly or wrongly, a cost to the taxpayer.

That brings with it responsibilities for institutions to recognise—and to take account of—in their financial dealings. And it brings requirements for better transparency, too. Universities shouldn’t need this critical friend to tell them of the double risk that ignoring these two concerns will bring.

Buying silence

Yet this is exactly what is occurring, with tens of millions of pounds being spent on payoffs and settlements involving confidentiality clauses and non-disclosure agreements to silence departing staff—more than £32 million a year between 2014 and 2017 and around £87m over the following two years

The number of these settlements with gagging clauses—4,000 in two years—suggests that the use of NDAs by universities is endemic.

Some of these figures must cover legitimate reasons to protect sensitive and confidential research, but that can’t be the only story. Indeed, we know it isn’t. Depressingly, individual stories have been picked up in the media of staff and students forced to sign NDAs having been the victims of sexual abuse and harassment—and even having made allegations of violent sexual assault

NDAs do not prevent individuals from reporting criminal acts or disclosing events under the Public Interest Disclosure Act. Yet why they should be used in these circumstances at all is beyond me. As with vice-chancellor pay, this critical friend wants to ask institutions: Do you not realise how bad this looks?

If the pain of these individuals isn’t enough, forcing them into contractual obligations to purchase their silence—as seems to be happening on an industrial scale—remains one of the great scandals yet to be properly exposed within higher education. Some individuals have secured confidentiality waivers to finally speak out—Emma Chapman’s two-year battle against her employer is an example—but a traumatised victim should not be forced by an institution that prides itself on educating young people and protecting their welfare to ever end up in this situation in the first place.

Moral lead

Far too many students and staff, for too long, have had their voices not only denied but taken away from them. What’s worse, taxpayer funds or student fees have been used to purchase that silence. And as a shareholder, as it were, providing the financial investment that has allowed universities to make these—at best suspect—decisions, it should be for the government to take the moral lead in not only highlighting this dark chapter in higher education but cracking down on its operation.

In the first instance, we should have a review of the use and operation of NDAs at universities, with tougher regulation or legislation preventing their use in the circumstances described.

This is the freedom of speech issue that matters. The abuse of NDAs has left certain students and staff neither free nor able to speak. It is an issue that won’t go away: as demands for transparency and use of public funds grow, universities that continue to use NDAs to cover abuse or bullying will risk tarnishing their future reputations for good. It shouldn’t take this critical friend to point that out.

Chris Skidmore is a two-time former minister for universities and co-chair of the All-Party Parliamentary University Group.