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Our Sector: Freedom to speak or freedom from harm?

The recent launch of Spiked! magazine’s freedom of speech index, a campaign aimed squarely at Students’ Unions, indicates that the debate over freedom of speech on campus is back on the agenda. Mike Day and Jim Dickinson take a look back at the at the debate over the Education Act 1986, which was designed (but arguably failed) to curtail “No Platform” policies in SUs. 

Regulations relating to “Freedom of Speech” on campus form part of the Education (No2) Act 1986: section 43 places a duty upon the institution to have a code of practice in place that will, as far as is reasonably practical, ensure that all members of the institution and visiting speakers enjoy freedom of speech and further that the use of premises is not denied to groups on the basis of the views they hold. This bit of legislation has been both sidelined and temepered- sidelined by legal advice that suggests SUs can sidestep it, and tempered by Charity Commission and now legislative pressure from recently passed terrorism law that has a focus on managing risk. How did all of this come about in the mid-80s?

Under the 1986 Act, if it is thought likely that a meeting may be controversial then it becomes a ”designated” event, and as a consequence subject to additional costs and organisational requirements to ensure that a university fulfils its’ obligations. But where did the act come from?  Students have always demonstrated at and about controversial speakers and university authorities and government have often been less than happy about it. Some of the debates and demonstrations of the late sixties and seventies went to the very heart of the argument over which groups should be able to influence the way in which universities were run. The 1986 Act finds its antecedents in what became known as the “no platform” policy.

First agreed at NUS Conference in April 1974, “no platform” was developed against a backdrop of increased racial tension; the views expressed by Enoch Powell were attracting support and the National Front had polled 4.7% in the Newham South by-election. Government increases in overseas student fees were seen by many as highly discriminatory. The NUS policy was modified at an Extraordinary Conference the following June. In opening the conference, President John Randall attacked the Press for the way in which they had misrepresented NUS discussions, “The record of the media on this subject has not been impressive. True, there has been an honourable attempt by many newspapers to maintain a fair balance of comment. However, they scarcely outweigh the blatant lies of the Daily Mail, now the subject of a formal complaint by NUS to the Press Council….) or the editorial witch-hunting indulged in by the Guardian. By comparison with attacks mounted against NUS by that newspaper the editorial pronouncements of the Daily Telegraph appear as vague intellectual ramblings of the apocryphal Hampstead Liberal ”.

Such was the level of interest the BBC and ITN turned up to film the debates. The conference took place on the same day as a planned National Front march through London; many delegates and observers were keen to join the counter demonstration and left; for those that remained regular reports were relayed to them . At one stage a blood stained delegate appeared in the hall whilst another brought news that the tactics he had seen used by the police were the worst he had ever seen. The debate centered on how far the policy should extend, with some delegates arguing that Conservative politicians should be included. Charles Clarke, then National Treasurer, defeated this move by arguing that what was needed was a precise policy that took an uncompromising stand against declared racists and fascists; Randall summed up the debate with a question “To achieve this general freedom it became necessary on many occasions to constrain some of the absolute freedoms of individuals. What was the greater freedom? An abstract notion of absolute freedom of speech, or a right to live in freedom from fear of persecution?”

murdered-by-policeElsewhere in Red Lion Square, London the day had ended in tragedy. Kevin Gately, a student at Warwick University had been killed on the demonstration trying to prevent a National Front rally from taking place. NUS denounced the subsequent enquiry by Lord Scarman as a whitewash, and the net result was to stiffen the resolve of those who supported “no platform”; it was seen as a crucial tool in the fight against racism and one’s position on the issue was, for some, a definitive guide to one’s anti-racist credentials.

The case was not helped by local activists ignoring NUS guidelines and seeking to include student societies, Conservative and Jewish groups in particular. During her time as President, Sue Slipman (1977 – 1978) successfully argued for a change in emphasis from “no platform” to “no invitation”, where speakers weren’t barred, they just wouldn’t be asked to speak . This change won a number of plaudits from the press but did not last, the position was reversed the following year as Labour students (NOLS) were trying to create some “clear red water” between themselves and the rest of the Broad Left, and championed the “no platform” cause in what President Trevor Phillips saw as a “grossly opportunistic” position.

The same conference also saw Conservative Keith Joseph spat at and jostled when he sought to observe a debate, an act that did little to build bridges with the future Secretary of State for Education. Attacks on the policy were coming at the same time as government legislation to change, and they hoped, restrict students’ union funding as well as some backbench activity that sought to abolish automatic membership. Conservative students (FCS) eagerly highlighted instances of what they saw as political bias or intolerance and if the left were keen to broaden the scope of the policy they were just as keen to misrepresent it. Visits made by MP’s to colleges that ended in disruption were seen as evidence of the policy in practice despite the fact that they had been invited and scheduled to speak. When Leon Brittain visited Manchester in 1985 the students’ union did all it could to ensure the meeting went ahead. John Carlisle MP, an apologist for the apartheid regime in South Africa visited various campuses prompting NUS President Phil Woolas to claim that he and others were deliberately trying to “provoke incidents” .

Keith_josephsmallDemonstrations and boycotts resulted in negative headlines for NUS and students’ unions and demands for action by the press. The theme was picked up in 1985 with the publication of the government green paper “The Development of Higher Education into the 1990s”. Amongst other issues freedom of speech was highlighted along with an indication that if institutions took no action legislation would follow.

In response the CVCP and CDP produced codes of practice that indicated that lawful freedom of speech should be upheld.  This was not enough for Fred Silvester, MP for Manchester Withington who in February 1986 moved a Private Member’s Bill on “Freedom of Speech”.  The codes, he said, “had too many doors through which the activist can bolt”, and whilst his Bill was not taken, the issue was taken up by Baroness Cox in the Lords who withdrew her amendment having received assurance by government whips that the issue would be addressed in the final text that went to the commons.

The government amendment caused a furore and, after strong pressure in the Lords, was withdrawn and a revised amendment devised with the CVCP . NUS argued that their “no platform” policy was complementary and supportive of the Public Order Act of 1936 which made it an offence to use abusive and threatening language or stir feelings of racial hatred, but the government were in no mood to listen. At the final stage of the Bill John Carlisle spoke in support, “It is a message to the vice-chancellors that they must put their own house in order . . .  it is a message to the students and students’ union. The House and British tax-payer will not tolerate no-platform polices… it is a message for those extremists – who are intent on putting their views across and preventing others from putting forward views with which they disagree.”  .

Speaking on Channel 4, Vicky Philips, NUS Vice President Welfare said, “There is a more sinister side to this legislation….  What it will do is force colleges and students’ unions to give money and facilities to the National Front and the British Movement, organisations who see colleges as fertile recruiting grounds for their abhorrent racist ideas. Organisations whose rationale is to incite racial hatred and to break the law. Students have opposed these groups in the past not just on ideological grounds but because their existence threatens the safety and security of Black, Asian and Jewish students and their ability to study free from intimidation and physical violence. The Government should legislate to protect the ethic groups in our society and not give facilities to the organisations which threaten and attack them.”

The onus was now on institutions to draw up codes of conduct in the knowledge that there would be penalties if a college did not see that the code was upheld. John Carlisle was eventually advised by his doctor to stop visiting college campuses, and within weeks Bristol Conservatives were reported to be thinking of inviting a speaker from the National Front to test the effectiveness of the new law . The effect of the legislation in the Education (No 2) Act was, as NUS had predicted, to create a greater degree of caution amongst university and college authorities .

Since the 1980s additional groups have become the focus of “No Platform”. Led by the Union of Jewish students, successive NUS Conferences in the 90s recognised an anti-semitic thread to some on campus activity, and groups such as Al-Muhajiroun, Hizb-ut-Tahrir and (for some more controversially) the Muslim Public Affairs Committee came to sit alongside the BNP and EDL on NUS’ lists. This activity then resulted in “No Platform” being converted from a policy to a constitutional provision within NUS at an extraordinary conference in Leicester in December 2007, where free speech zealots from UEA that had won an anti No Platform referendum in Norwich (and were closely linked to the revolutionary communist party) lost against a leadership determined to give permanence to the position. The package was further refined in 2010 when Conference resolved that “No Platform” was a “blunt tool” for making decisions about speakers, resolving to develop guidelines that would help newly registered students’ union charities balance all speaker request risks on a ‘freedom to speak’ versus ‘freedom from harm’ basis- arguing that students’ unions had the right to set moral standards for speech that went beyond the law. These widely adopted guidelines went on to be endorsed by Conservative ministers in both HE and FE- a sharp turnaround from the position they had held in the 80s.

Students’ unions have frequently been vilified in the media for upholding a “no platform” policies that sought to protect minorities, yet with new anti-terror legislation the government and some sections of the press are travelling the same road. With student groups and organisations keen to put their views across it seems the debate over how far our freedom to speak reaches is far from over.

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One Comment

  1. I am not sure it was just about NUS’s “no platform” policy – it was about students’ union’s (or small groups of students with or withhout SU support) seeking to prevent a whole range of individuals speaking on campuses (most of whom were invited onto campuses by right wing student groups – particularly student Conversative Associations) including Tory cabinet minsters, rightt-wing Conservative MPs, ambassadors from South Africa etc.

    They were then prevented from speaking on campus by a small but vocal minority.

    The then Thatcher government passed legislation to ensure that “Freedom of Speech” on campus was upheld by the governing body of the instituition through the 1986 Education Act.

    Then the 1994 Education Act came into play

    Then most students’ union’s became registered charities in 2010 – and have come under Charity Commission “guidance”

    Whatever NUS does or says – it is for the purposes of the EA86, EA94 or the Charity Commission – exempt.

    However, the federal members of NUS – individual students’ unions are not – and they may not ignore the law of the land as they apply to students’ union, HEIs or charities.

    Officers, staff and trustees of students’ unions do not have the luxury of NUS staff, officers, NEC or National Conference when it comes to freedom of speech, external speakers, and are free to pass whatever policy they wish (with or without platforms)

    Students’ unions at the front line have both challenges and legal responsibilities that NUS does not have.

    There is clearly a conflict between EA86 and Charity Commission guidelines – most eloquently expressed by Paul Greatrix at the University of Nottingham.

    http://blogs.nottingham.ac.uk/registrarism/2013/02/01/speaking-with-difficulty/

    Which amongst us wants to be the first in court to test the difference.

    Perhaps a UK version of the First Amendment would help?

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