Gagging clause under fire

December 15, 1995

A confidentiality clause in the contract the Higher Education Funding Council for England offers to quality assessors is to be submitted as evidence to the Nolan inquiry on standards in public life.

Geoffrey Alderman, head of the academic development and quality assurance unit at Middlesex University, attacked the clause, introduced at the start of the 1994/95 academic year, during his recent inaugural lecture, describing it as "a gagging clause so draconian as to virtually prevent an assessor from ever making any public pronouncement on any HEFCE-related issue."

He said this week: "I will be sending this to Lord Nolan. I was shocked when I saw it. It bears little relation to the perfectly satisfactory confidentiality clause I signed when I was contracted by them in 1993/94. It raises two fingers to academic freedom."

In response, HEFCE issued a statement: "The confidentiality clause is not intended to stifle debate but to protect individuals and institutions. It is essential that the assessment process takes place in an atmosphere of fairness and mutual trust. This would not be the case if institutions felt that assessors were free to publish comments or give details of an assessment in which they have been involved."

The controversial clause reads: "The council regards all information of which the contractor may become aware whilst providing services under this contract and which concerns either the council or the institutions which have been assessed or which are being assessed under the council's programme for the assessment of education as confidential information which it is entitled to protect. The contractor will not at any time during or after the Term do any of the following without the council's prior written consent: a. Disclose, by way of press release or otherwise to any third party any confidential information b. Use, either for the contractor's own benefit or for that of any other person, any confidential information The contractor will use his or her best endeavours to prevent the disclosure of any confidential information by third parties."

The contractor will not at any time during the term engage in public speaking or undertake any written dissemination, in printed or electronic form, about the Council's assessment of education programme without first obtaining the Council's prior written consent."

The earlier version submitted to Nolan by Professor Alderman is identical, except for the substitution of "assessor" for "contractor" in the text.

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