All Too Clear? – IUA Statement of Clarification on the Croke Park agreement

This IUA statement is a response to much recent comment by academics and others, following negotiations over implementation of the Croke Park Agreement, and in particular following the recent letter to the Irish Times (20 January 2011) and the subsequent Dublin gathering. The statement is clearly meant as a clarification of the IUA’s position, and in many respects it succeeds – sometimes intentionally, sometimes (I suspect) not. As one who signed the Irish Times letter and attended the gathering, I give my own reaction to the new statement.

Irish University Presidents need to be proclaiming the achievements of their staff to the wider world, sending the message that we have achieved marvellous things, and that with better resources we can achieve even more. Unfortunately, they have now been misled into criticising staff for raising points for discussion, seeking input into wider strategy, or doubting whether the right path is being followed. We are entitled to more than this.

Public confidence

The statement makes much of the need for public confidence in universities. It is ironic, therefore, that the main object of the statement seems to be to stop university teachers from having too high an opinion of themselves. Academics have misunderstood the situation, they are wrong to see any threat to their freedoms, it says, and they have work to do in gaining the public’s trust. They have shown “widespread excellent commitment”, but apparently not in a way that demonstrates “accountability”, and so their efforts are insufficient. The IUA statement has accordingly been reported in the Irish Times as an attack on the academics who have been complaining of infringement of their rights, and indeed it is hard to read it any other way. Academics squabbling with one another is a familiar newspaper cliché, and that is the slot to which this story has been assigned.

Public perceptions are clearly an issue to be addressed, but for the IUA to attack their own staff in public makes it worse rather than better – it only adds to the impression that the universities have committed some great wrong against the public, for which they must now do penance. They have done no such thing. In recent years, Irish universities have taught more students, at a cheaper and cheaper rate, and in research terms they hold their own with international universities receiving much better funding. They have had to put up with attacks from public figures who have accused them of laziness and fecklessness, on no substantial grounds. The IUA strategy seems to be to gather statistics to prove our collective case, and only then to launch an effective counter-attack – hence the recent attention to full economic costings and workload models. But those are not the rules of engagement in national politics. A Batt O’Keeffe or a Roisín Shorthall shoots from the hip and looks for evidence later, as their public utterances show – and we do ourselves a disservice by waiting years for the statistics before venturing an opinion. If the IUA really believe that our commitment is “excellent”, that abuses of academic rights are “extremely rare”, and that academic freedom is “essential” – all claims made in passing in the statement – then they need to be making these claims from the housetops, to all comers. As it is, these claims have by some perverted or twisted logic come to be used as sticks to beat their staff with. So, for example, the IUA say that some academics have denied that lazy academics exist – and so the fact that only the overwhelming majority work hard somehow becomes a point against us! If senior university management is openly attacking the views of its staff, then this is a disservice to universities’ public reputation. We should all be on the same side here – but whose side are the IUA on?

Autonomy and accountability

The IUA statement makes much of “accountability”, which it assumes to be in short supply, and the lack of which is supposed to be at the centre of all our problems. There is even an attempt to link lack of university accountability to the causes of the current economic crisis (though if there is a coherent line of argument there, then I have missed it). The focus on accountability comes from the Hunt Report, and the IUA statement echoes Hunt’s call for a new balance between the accountability and autonomy, a balance which is assumed to need correction by adding to the accountability side of the scale.

This is management-speak, and while it is not entirely fair to call it meaningless, nonetheless it is vague, almost chameleon-like. What is “accountability”? Hunt doesn’t say. Why is it good, if it is? Again, not a word. Hunt proposes “accountability” as the answer to every problem, often with no evidence, and frequently without even stating what problem it is that “accountability” is supposed to solve. There is a brief discussion in Hunt about a supposed “balance between institutional autonomy and accountability”, but not a word about why the latter is supposed to be superior, or even an acknowledgment that its proposals make heavy inroads into autonomy. Someone who speaks this way needs to be very carefully watched. It is all very well for the IUA to say that accountability is not the same thing as control, but very often measures of “accountability” look very much like tools of control. And insistence that universities are to remain autonomous in certain areas are double-edged – do they mean that individual academics or departments are to be autonomous (from management), or do they mean that university management is to be autonomous (from government)? In many contexts, those two are just about opposites.

What is missing is any acknowledgment that there is already considerable accountability in the university system, at least on any ordinary definition of the word. The Higher Education Authority Act 1971 and the Universities Act 1997 already mean that universities are heavily monitored in many of their activities; their money is rigorously accounted for; the terms on which they can hire staff are regulated; and all university departments are regularly reviewed for quality. Recent years have also seen the rise of international university rankings in many areas, which the universities cannot afford to ignore however flawed these new measures may be, and which provide a further impetus towards accountability. And legal controls have become even more intense in recent years, particularly under the Employment Control Framework, which ensures that universities must now ask permission before making any new appointment or promotion of any significance. Hunt briefly acknowledges all of this, and notes that Ireland has performed very creditably against these standards. Yet despite all of this, Hunt insists that more accountability/control/direction (call it what you will) is needed. Why? What is the intellectual justification for this? What university ever achieved eminence by submitting to government control, rather than by being left to discover its own way to the top? And why are the IUA making only the most muted of protests against this state of affairs, and making public attacks on staff who can see the fallacy of the Hunt approach, rather than agreeing with them and enlisting their co-operation?

Demands now being made

The IUA statement is vague on what each university will actually be asking their staff to do, and to that extent it fails in its purpose of clarification. We read all sorts of stories in the press and on the net, many of them emanating from those involved in the negotiations – that staff will be required to be at their desks for specified periods, whether or not the work that needs doing is desk work; that there will be a set time limit for answering e-mail queries; even, that one university now demands that its staff wear name-badges, McDonalds-style, whenever they deal with members of the public! I do not know how accurate any of this is, or what is a real demand and what a mere bargaining posture; I do know that I am not in the least reassured by the bland statement from the IUA, which attempts to be reassuring without, in fact, promising very much – except that the IUA have a deep respect for academic freedom, so long as it is the IUA who are allowed to define it.

We need to recognise managerialism when we see it. All the signs are there: the refusal to admit that staff are doing their jobs until there are figures “proving” it; even a refusal to admit that they can do the job, until all staff have certificates saying so (the certificates being issued by people who don’t do the job); the demand that staff specify precisely what they spend their time doing, and the refusal to admit they do anything at all until these statistics are provided; the selective blindness, as universities agree that more and more students are being taught, but refuse to admit that those doing the educating must have been working harder. Worst of all, there is the pervasive assumption that academics are work-shy, and can only be truly motivated by the fear of being exposed as slackers – and so the main strategy for increasing efficiency is the deliberate creation of insecurity and uncertainty. It is not any one bureaucratic control that is the problem; a few of them are individually defensible. What is truly insupportable is the constant introduction of additional surveys, checks, and contractual commitments, as if we had nothing better to do than fill in forms or cajole others into doing so. We did not come into this job to fill forms. Every form we have to fill represents time we could have spent doing our real jobs.

When will the Presidents learn? We will know that university presidents are serious here when they undertake never to introduce a new monitoring or management tool, without abolishing an existing one of comparable breadth and complexity. Change is acceptable, new ideas are welcome; gridlock is not. Until this is recognised, staff will undoubtedly view all such exercises with scepticism, a scepticism born of long experience.

Academic freedom

The IUA statement is strongly supportive of academic freedom, at least in principle: “it is the essence of what defines a university”, though worth little, apparently, unless society generally has confidence in the universities: “in the absence of such trust and confidence [it] would be a debased currency of little or no value. It would reduce universities to voices crying in the wilderness, dependent on society for their subsistence but powerless to influence it”. So the IUA are prepared to support academic freedom, as reflected in the Universities Act 1997, but appropriate steps must be taken to restore public trust. “This is what we are seeking to do in the proposed contractual provision which states that it is to be acknowledged that the freedoms which are contained in section 14 of the Universities Act are to be exercised in the context of the framework of rights and obligations contained in the contract.”

But what on earth does this last bit mean? This final sentence is a masterpiece of ambiguity. Some might say it is a piece of legal gobbledygook. Speaking as the holder of several law degrees and a few decades’ experience of Law, I beg to differ. The sentence is no clearer to someone who understands all the legal jargon, even if entirely familiar with both the law of contract and the Universities Act. I suppose there are two things it could mean, though neither of them is particularly encouraging.

It might mean that the guarantee of academic freedom, while powerful, is not a fig-leaf to excuse idleness. It guarantees freedom of thought and the right of an academic to do their job in the way they think is right, but it does not protect an academic who fails to turn up for work at all. In other words, it is not a blanket permission for academics to behave (or misbehave) as they please. But who has suggested the contrary? No-one, so far as I am aware, has claimed that it protects the work-shy, and no tribunal has ever been likely to read it that way. If this is the IUA’s point, it hardly seems worth making; once again, the statement makes a great show of affirming propositions which no-one has denied, and which have never been in question.

The other, and more pessimistic, interpretation is that academic contracts are to be read as limiting the guarantee in the Universities Act – in other words, that academic freedom should only exist to the extent that each academic’s contract allows for it. This is extremely worrying. Academic freedom is, in large part, freedom from university management – and so is not worth much if it can be removed by a simple clause in an employment contract, drafted by that same university management. I don’t know what is intended here; and I certainly hope that this reading is wrong. But if the object of the statement was to reassure, then it has failed in its object.

Tenure

It is when the IUA statement comes to tenure, that it makes itself all too clear in its meaning, despite the vagueness of terminology. Tenure, we are told, is a legal relic, dating from before modern employment protection. That modern law is grand, but (by implication) it also renders tenure obsolete. And while academic freedom too is wonderful, it is a mistake to see tenure as in any way related to it – to believe the contrary is “a completely wrong characterisation”. To those outside the IUA, all of this is highly dubious, of course. No serious case has been made that tenure has passed its sell-by date, and most people who have thought seriously about academic freedom have seen an extremely strong connection with tenure. (Those who want to dismiss staff for voicing unpopular views rarely admit what they are up to – a guarantee of academic freedom is valueless if it only catches employers who admit they are infringing it!) But the general gist of the IUA’s argument is clear enough – Tenure not to be confused with anything valuable or worth preserving.

With that introduction, the IUA statement gives a number of reasons why tenure is positively undesirable. Tenure is an “amorphous concept which somehow subsists in a parallel realm” to the rest of employment law; this “creates ambiguity, and at worst, creates the impression that tenure will be advanced to create an absolute prohibition on dismissal or sanction, even in the worst and thankfully extremely rare cases of misconduct”. (I would have thought that it was one of the first duties of university presidents to correct such a false impression wherever it is encountered, but it seems not. We are to go with the flow, it seems, even when the flow doesn’t understand what it is talking about.) The solution is “to establish that tenure is consistent with the established corpus of employment law and, in that context, refers to the duration of contract”. This seems to mean that tenure, properly understood, should only mean that each academic’s contract lasts as long as it lasts – in other words, that “tenure” is to be all but meaningless, adding nothing to ordinary employment rights.

This complaint at lack of clarity in the legal meaning of “tenure” is ironic, to say the least of it. The employment protection provisions of the Universities Act 1997 – principally section 25(6) – are in most respects absolutely clear, stating that academic staff can be dismissed, but that the universities should establish appropriate procedures by statute, and make provision for tenure. When the Act came into force, university management spent as long as they could in denying that either “in a statute” or “shall provide for the tenure of officers” meant what they so clearly said – only after explicit court rulings, which took a decade to secure, would the universities adhere to the plain wording of the Act. (The first point – that “statute” means “statute” – was established in Fanning v. UCC [2008] IESC 59, the second – that “shall provide” means “shall provide” – was established in Cahill v. DCU [2005] IEHC 264. Not all Irish universities have complied with the second ruling, even now.) So while we are all in favour of clarity in the law, this sudden concern for clarity on the part of the IUA seems to be more strategic than heart-felt. And the new IUA position on tenure – which, as Paul Cahill points out, is precisely the view the High Court rejected in DCU’s litigation with him – cannot be regarded as a mere attempt at clarification. It “clarifies” it into oblivion. And this “clarification” is aimed at removing something that has, up until now, been treated as fundamental to academic life.

It is important to realise that the IUA are out on a limb here. The Hunt Report does not mention tenure except in passing, and assumes it is a settled part of the academic landscape. The Croke Park Agreement calls for “a comprehensive review and revision of employment contracts to identify and remove any impediments to the development of an optimum teaching, learning and research environment”, but says nothing to suggest that tenure is such an impediment. Tenure is embodied in national legislation, and can only be changed by further such legislation – when university presidents urge change in this way, without attempting to make a rational case for the change, and simultaneously engage in feel-good sloganising (“We strongly support employment security”), they cannot expect their staff to be much reassured. And the connection between tenure and academic freedom, which everyone but the IUA can see, will not be denied.

An established university post is hard to get. Even for the more lowly posts, a doctorate is usually necessary simply to be in contention; competition will typically be strong; and tenure can only be achieved after several years’ satisfactory performance in post have been completed. It may take half a lifetime to get this far. All this for a wage which, despite tabloid accounts to the contrary, is not so generous, when compared to other posts which such intelligent and committed individuals might have sought. It is not unreasonable that someone who has pulled off such a considerable achievement should have some solid entitlement to keep the post, so long as they continue to do the job and to behave well. No convincing reason has been given by the IUA why this should cease to be so, or why the efficient running of their institutions requires abolition of this fundamental protection. The onus is on them.

Conclusion

There is a saying, that one should never waste a good crisis. Certainly it seems that the IUA do not propose to. Unfortunately, their plan is apparently not to attack public misconceptions about universities, but to blame those misconceptions on their hard-working staff. It would be better for all concerned if university presidents and their staff could face this difficult future united in purpose. After this “clarification”, however, the prospects for this seem relatively remote.

Steve Hedley
Department of Law, UCC

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7 Responses to “All Too Clear? – IUA Statement of Clarification on the Croke Park agreement”

  1. […] All Too Clear? – IUA Statement of Clarification on the Croke Park agreement (via Ninth Level Ireland) February 7, 2011 Shane O'Mara Leave a comment Go to comments This IUA statement is a response to much recent comment by academics and others, following negotiations over implementation of the Croke Park Agreement, and in particular following the recent letter to the Irish Times (20 January 2011) and the subsequent Dublin gathering. The statement is clearly meant as a clarification of the IUA's position, and in many respects it succeeds – sometimes intentionally, sometimes (I suspect) not. As one who signed … Read More […]

  2. Excellent post.

    I have one general question, which I have yet to see addressed: precisely what problem (or problems) is the current assault on our third-level system designed to solve? There is no actual empirical evidence of failure or poor performance by the system (given the resources available) relative to any other third-level system; in fact, all of the internationally-available evidence is quite the opposite – our system performs astonishingly well given the resources available.

    One of the prime disappointments of the Hunt report is the lack of a proper and comprehensive international benchmarking of the performance of our universities against international peers. Evidence of this type is absolutely necessary for understanding how our institutions are performing, and should inform debate here. Sadly it does not.

  3. Geoffrey Roberts Says:

    Your blog is a bit rich, Steven. You sign a letter stating there is “a serious threat to academic freedom, Irish scholarship and, indeed, Irish democracy, arising from the proposed implementation of the Croke Park Deal in third-level institutions.” When the IUA – the body overseeing the implementation of Croke Park – replies you cry foul, claiming the IUA is attacking and criticising its own staff rather than proclaiming their achievements. So much for academic freedom!

    Besides, the IUA statement is nothing of the sort. It is a perfectly reasonable statement of the position from its point of view. While there may be points of disagreement we should all welcome the IUA’s commitment to the independence of the universities, to academic freedom, to accountability not control of staff, and to winning back public confidence in third level education.

    You write: “We should all be on the same side here – but whose side are the IUA on?” But it was your letter that created this division in the first place by its misconceived and ill-timed attack on university managements and your blog just deepens those divisions.

    There are important issues to be addressed in the universities and real differences of interest between staff and managements that have to be resolved. A threat to academic freedom, Irish scholarship and Irish democracy are not among them.

    Geoffrey Roberts

  4. Hi Geoffrey

    You can, if you wish, spend time debating whose fault it is that the IUA and their staff are now at loggerheads. Personally I think this is a distraction. When the IUA make a public statement which can only be read as a reproof to their staff for daring to assert academic freedom, obviously some sort of response is required.

    As for the IUA’s new position being “perfectly reasonable .. from its point of view”, that seems to me to be carrying empathy rather far. The IUA statement openly opposes tenure. Yes, it also claims to support academic freedom, but in such very limited terms that this hardly amounts to anything – for reasons I gave. I see that you choose to ignore the whole argument over “accountability”, and how meaningless that word is unless fleshed out in some way – and that you accept the IUA’s assertion that it is not the same thing as control. If you have some serious point to make over that, I’m listening – if you only have invective, please don’t waste my time or your own.

    As for the “important issues to be addressed in the universities and real differences of interest between staff and managements that have to be resolved”, I’d be interested to hear what you think about those – so long as you don’t accuse everyone else of “crying foul” or being “a bit rich” simply because their view differs from yours!

  5. 1. The IUA is a registered *charity* – it has no legal representative rights.
    2. Who funds the IUA?
    – it receives generous Marie Curie funding
    – it receives subventions from the Universities (tax payers money!)
    3. It is a member of IBEC
    4. It has an impressive management organisation structure (and wage bill to go with that)
    == management for management’s sake

  6. […] Hedley, Professor of Law at UCC and a signatory to the call, has given a detailed reply to the statement on the blog Ninth Level […]

  7. Steve

    Charming naivety, as ever.

    DCU contracts were unilaterally – and almost certainly illegally – changed in 1995 explicitly to get rid of the sections on “academic freedom ” and tenure.

    Incidentally, they also now specified a physical “place of work” – in the department, not at home

    The first thing you guys have to do is tone down the rhetoric, look for stunts like this in other colleges, and take a lawsuit to void those illegal contracts.

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