Academic tenure is probably the most controversial area addressed by the Barrett bill. Unfortunately the agenda is far from clear. Senator Barrett writes of addressing “the problems created by the Cahill v. Dublin City University case  IESC 80” (which are …?). He adds that “[m]uch of what is understood as tenure is actually the norms and practices of the public service being applied to higher education and research” – a controversial statement, to put it mildly. As it is, we have proposals in the draft bill, but little by way of justification or explanation. There seem to be four main issues:
Fixed-term contracts. This is flagged up as an issue by Senator John Crown, who graphically referred to researchers “living from one six-month period to the next, wondering when they will get another research grant or whether, at the whim of people whose vanity research project is satisfied by their activities, they have a job to go to”. It is not clear what, if anything, the Barrett bill will do for such people; I rather suspect that cl 24(8)(e)(ii) (“discharge of the contract by operation of law”) is meant to ensure that it does nothing at all. If this is not a problem that the bill means to address, this should be made clearer.
Progression. Cl 24(8)(c) proposes a probationary period of 24 months for all academics (“teachers or investigators”), after which they acquire tenure. Senator Kathryn Reilly has already suggested that this is on the long side. I suspect that university management will regard it as too short, as a proper demonstration of fitness will probably involve quite a bit of paperwork, and the bill requires 6 months’ notice of a refusal to grant tenure (cl 24(8)(d)(ii)). And how is this framework to deal with internal promotions? – If a lecturer with tenure is promoted to a senior lectureship, does s/he lose tenure for 24 months? On all of these issues, this seems to be an area where higher education institutions will already have settled procedures, almost certainly negotiated with union representatives, and so a careful case for outside intervention will need to be made.
Removal for cause. The bill gives various procedural rights to staff members whose removal for cause is being considered, including (“if possible”) a right to be heard both by the academic council and by the governing authority. The right to academic freedom (cl 13) would no doubt be of relevance in many such cases. Where what is alleged is incompetence, there should be evidence from teachers and scholars. Dismissal should carry a right to a year’s pay unless the case involves “moral turpitude” (cl 24(8)(d)(iv)). But what is this all for? It would help considerably if Senator Barrett could state clearly what he sees as the problem here: the existing defence of academic freedom, and procedural rights on dismissal, are already substantial. What is he trying to achieve?
Removal for redundancy. Current university law already guarantees tenure (Universities Act 1997 s 25(6)), but does this preclude redundancy? The only judge ever to attempt an answer (Clarke J in Cahill v. Dublin City University  IEHC 20 para 6.3) thought not, though a carefully-written institutional statute would be needed. But the matter remains unclear. The Barrett bill guarantees tenure in general, but makes an exception for “extraordinary circumstances because of financial exigencies” (cl 24(8)(c)), which exigencies must be “demonstrably bona fide” (cl 24(8)(e)). What does this mean? Experience suggests that there are three main situations where an institution is likely to seek redundancies:
- where a particular income stream (grant, programme income), which pays for specific posts, dries up, and it is decided to terminate the posts;
- where a particular department or unit persistently makes losses, and so there is a decision to close it or scale it down;
- where the institution as a whole is in deficit, and it is decided to reduce total staffing bring the institution back within budget.
Case 1 is already a familiar part of the higher education scene; case 2 would change institutional politics profoundly, as “black hole” departments would suddenly find their position infinitely more precarious than hitherto; and case 3 will become the new nightmare for all staff who cannot produce instant and reliable proof of their indispensability.