This was originally posted on my Patreon here.
This month is the 35th anniversary of the introduction of the Education (No. 2) Act 1986 which was a response by the Thatcher government to the disruptive protests on campuses in the mid-1980s which included the shutting down of talks by Conservative MPs. It is particularly prescient that this year, the Conservatives are attempting to introduce new legislation that they believe will address the perceived gaps in the 1986 Act. Below is an excerpt from my book on how the 1986 Act was passed.
There had long been calls for government intervention around the issue of freedom of speech at universities. In May 1970, Labour’s Education Secretary Edward Short stated that he did not consider the topic of freedom of speech at universities ‘an appropriate subject for legislation’. After the introduction of the ‘no platform’ policy by the NUS in 1974, the Conservative MP Norman St. John-Stevas asked the then Labour Education Secretary Reg Prentice whether he would publish a list of the student unions that had rejected the ‘no platform’ policy, to which Prentice responded:
As for publishing a list of certain student unions, I do not have that information available and I do not think it would be right for anyone to seek such information. It is for the student unions to run their own affairs. It is not for us to compile lists. If I receive an invitation to speak to a students’ union, I inquire from those issuing the invitation what is the attitude of the union to the ban.
As the controversy surrounding the bans on pro-Zionist groups by some student unions raged in late 1977, Conservative MP Anthony Steen called for the defunding of student unions who upheld this ban. Steen suggested that the Labour Education Secretary Gordon Oakes ‘warn unions which have passed disgraceful motions that the Government will not tolerate this action and that if they pursue them he will take steps to take the money away.’ Oakes replied that ‘Ministers have no powers to intervene in the conduct of student union affairs’ and added:
There are many difficulties in relation to grants. Many universities are not involved in this matter. There would be great difficulty in trying to withdraw or discriminate with regard to grants. I do not want to take that course of action. I want students themselves to put this matter right in their national body, the NUS, and in their individual democratic student union bodies at particular universities.
This would remain the consensus of the British government until the mid-1980s when Sir Keith Joseph as Education Secretary sought to fundamentally reform the higher education sector in line with the Thatcher government’s neoliberal agenda. In 1985, the Green Paper The Development of Higher Education into the 1990s was presented by Joseph with a wide range of suggested reforms. Coming shortly after the protest against Leon Brittan at the University of Manchester, the Green Paper listed freedom of speech at British universities under the government’s ‘main concerns’, stating:
1.10 All institutions, at all times, have a responsibility to ensure that their affairs are conducted as befits a liberal institution. In particular, they have a responsibility to protect freedom of speech within the law, even for those with widely unpopular views: this is essential, as part of a free society, for critical thought and the liberal education which it underpins.
The Green Paper took up the argument that the funding given to student unions should not be given those unions that enforced the policy of ‘no platform’ – an argument also made by the Federation of Conservative Students about the alleged misuse of student union money to fund left-wing causes. Universities were called ‘a natural home of free speech’ and the policy of ‘no platform’ was described as the signal of ‘the withering away of the university… as part of a free society in which all views may find free expression within the law.’ The Green Paper argued that ‘taxpayer’s money should not be used to fund unions that refuse a platform to speakers’ whose views are objectionable to some students although others wish to invite them’, as well as to fund unions ‘that prevent invited speakers from gaining a hearing, or that permit violence or the threat of violence to that end.’ This seemed to blame violent protests on the student unions even though in most instances, as demonstrated in this book, the student unions distanced themselves from any protest action deemed violent and often promoted peaceful protests at odds with the more militant actions taken.
At this stage, the Green Paper suggested that ‘maintenance of freedom of speech will continue to be the duty of each institution’ and encouraged the Committees of Vice-Chancellors and Principals (CVCP) and of Directors of Polytechnics to produce their own guidelines. The Green Paper ended with a warning:
The Government will watch to see the results and, should unsatisfactory incidents continue to occur, will consider what further may be done, either at a general level or through approaches by the Education Departments to individual institutions.
Attempting to stave off any future government intervention around this issue, the National Union of Students, the National Association of Teachers in Further and Higher Education and other peak bodies tried to formulate a charter that would indicate ‘a commitment to the principle of independent and democratic student unions’, including the freedom of speech and political activity on campus. However agreement to the charter by all of the bodies involved could not be achieved and later in the year, the Committee of Vice-Chancellors and Principals developed their own guidelines ‘in an attempt to preempt [sic] any plans the Government might have [had] to introduce legislation’ around the issue of free speech. The code circulated by the Committee made it clear that ‘freedom of speech [was] not an absolute right at all times’ and proposed that ‘university authorities should have the right to stop meetings or visits by controversial figures if there is any threat to their safety’.
This code was proposed by the Committee of Vice-Chancellors and Principals at the same time as Home Office minister David Waddington faced a disruptive protest at the University of Manchester, shortly after the riots in London and Birmingham and only several months after the protests against Leon Brittan at the same university. Invited by the Federation of Conservative Students, Waddington faced about 100 students who ‘began stamping their feet and shouting “Racist” and “Deport Waddington.”’ The Daily Telegraph reported that ‘protesting students jeered, spat and threw water’ at Waddington, while the Daily Express claimed that he was punched and had beer thrown at him. He was quoted by the Daily Telegraphas shouting at the protesting students:
As long as I’ve got breath in my body I will defend freedom of speech against people like you. You want to turn this country into a socialist bloc. You are showing your contempt for democracy. However [sic] loud you shout, you will not be able to stop freedom of speech in Britain.
Scheduled to speak for half an hour, he had to leave the stage after ten minutes and allegedly said, ‘Those students were not fit to be educated at the country’s expense.’
The incident was brought up in parliament a few days later with Conservative MP Fred Silvester asking during Prime Minister’s Questions:
Is it not depressing that students at Manchester university should have attacked and abused the Minister of State, Home Office, my hon. and learned Friend the Member for Ribble Valley (Mr Waddington)? Does my right hon. Friend agree that it is about time that people inside and outside universities stood up to be counted on whether they are prepared to defend the right of free speech?
The Prime Minister replied, ‘Yes I agree… Universities are places where, above all, free speech should be honoured, not prevented’. By February, Silvester had introduced a private member’s bill to protect freedom of speech at universities, citing the protests against Brittan and Waddington at Manchester University amongst others. In the days before presenting the bill in the House of Commons, Silvester told the Times Higher Education, ‘In a student union it is very easy to raise the temperature and threaten disruption. This is a huge loophole.’ One that he intended to close.
Silvester’s private member’s bill was ‘to safeguard the right of free speech and institutions of higher education, including student unions, to establish the duties and powers necessary for the enforcement of this right’. Silvester criticised the guidelines devised by the Committee of Vice-Chancellors and Principals the previous year as having ‘too many doors through which the activists can bolt’, particularly criticising the notion that universities could use the threat of disorder as reason to prevent someone from speaking. He argued that this ‘would be an open invitation to those who adopt no platform policies to threaten disruption as a means of preventing the meeting from taking place’ and to prevent university administrations from taking this option, Silvester’s proposed bill sought to impose a duty upon university authorities to ensure that ‘they had taken all reasonable steps’ to maintain the right of free speech. Silvester explained:
Those steps should include a proper disciplinary code, adequate action against offenders, fines on student unions, where appropriate, arrangements properly made with the organisers of meetings and arrangements for the admission of the police, where necessary. Non-discrimination in the use of facilities by persons of different shades of opinion should also be included.
The Times Higher Education reported that the chances of the bill passing were ‘slim’, but there some in the Conservative Party who hoped ‘to use the occasion to prise some form of commitment from the Government to introduce its own legislation’. Its second reading was delayed twice and after wrangling between several MPs and the House of Lords, the bill was dropped and eventually incorporated into the Education (no. 2) Bill, pushed through parliament by Sir Keith Joseph’s successor as Education Secretary, Kenneth Baker.
The Education (no. 2) Bill was wide-ranging and sought to introduce many of the proposals put forward in the Green Paper from the previous year. Originally slated as clause 41 of the Bill, the section relating to ‘no platform’ was debated at length in the House of Commons in late October 1986, just days after Enoch Powell had faced disruptive protests at Cardiff and Bristol. The Under-Secretary for Education, George Walden, explained the purpose of the clause:
the clause will require authorities to exercise judgment, sometimes as to whether a meeting should proceed at all. It will not prevent them from concluding in the last resort, although they would do well to consult the police before reaching such a conclusion, that a meeting should be cancelled or at least postponed because the threat of a breach of the peace was too substantial. But the clause will be beneficial in requiring them to weigh the situation most carefully before reaching a decision, rather than simply taking the line of least resistance.
Most of those in favour of the Bill argued that the legislation would send a signal to the university administrations that measures to protect freedom of speech on campus had to be taken seriously. Backbencher David Crouch stated that the clause ‘puts into law what the CVCP put in a letter’, acting as ‘belt and braces’ for the Committee’s previous guidelines. Tory MP for Bristol North West, Michael Stern, further this sentiment by saying:
The clause is necessary to get the CVCP to commit itself to something which most of us regard as important in our civilisation, instead of simply sitting on the sidelines saying that it deplores what is happening but unfortunately it cannot do anything about it.
John Biggs-Davison, a prominent member of the Monday Club, claimed that the legislation was needed because the universities ‘have shown themselves impotent to make available free speech to visiting speakers’. John Carlisle, having been at the centre of these protests at universities, welcomed the Bill and declared that it sent ‘a strong message’ to Vice-Chancellors ‘to firm up their own organisations and to become far more personally involved’. Carlisle also argued that it sent a message to student unions that ‘the British taxpayer will not tolerate no-platform policies’, which ‘should not be a part of any university’.
However at the same time, many of those who supported the Bill conceded that it had its limits and that universities might not be able to stop disruptive protests altogether. As George Walden stated, ‘I should like to stress that this legislation is by no means a panacea… [The] law, by its very nature, cannot be impregnable. We have been reminded of that by events in Bristol last week’.  John Carlisle acknowledged that ‘those extremists who are intent on wrecking meetings… will not be put off by the clause’, but argued that ‘[t]he message is that we will not tolerate violence on our campuses’.
Liberal and Labour MPs opposed the legislation, questioning whether it was necessary to compel universities by law to enforce free speech. While declaring that Labour was ‘totally against the no-platform policy’, Labour MP Giles Radice suggested that it was uncertain whether the legislation would help foster free speech.Radice claimed that Vice-Chancellors were worried about a number of things:
Demarcation is an issue, as is judging in advance that which is lawful. There is a problem about the conflict of duties…
Vice-chancellors [sic] are worried that they might have to be judges and police. They are worried about vexatious legislation.
Instead of a legislative approach, Radice proposed that ‘the best way forward… [was] through a code of practice.’
In a last ditch attempt to avoid the legislative measures of the Bill, the NUS put forward a six point charter that would uphold free speech at universities while providing protection for minorities who might not feel safe. The charter proposed:
· black, Asian, Jewish and gay student should have the right to study free from fear of racial harassment, intimidation and violence;
· women should have the right to study free from sexual harassment;
· visiting speakers should have the right to free speech on campus providing they do not breach the rights of others outlined in the charter;
· the right to legitimate, non-violent protest should be maintained;
· students should have the right to examine their personal record files;
· student should be represented on all major college decision-making bodies.
However did not deter the government and the Education (no. 2) Act was passed into law in November 1986. Section 43 of the Act demanded that universities, polytechnics and colleges ‘shall take such steps as are reasonably practicable to ensure that freedom of speech within the law is secured for members, students and employees of the establishment and for visiting speakers.’ The last clause of section 43 stated that the Act applied to ‘premises occupied by the students’ union’, but student unions contested that as they were separate legal entities, the Act did not apply to them. As Ian Cram and Helen Fenwick have shown, as ‘section 43 does not directly cover student unions’, the stance taken by student unions has been contested for the last thirty years.
Amidst the current moral panic about the free speech ‘crisis’ on university campuses, there has been a push to overturn this and incorporate student unions into the legislation around freedom of speech. In 2020, the Policy Exchange’s second report on academic freedom recommended that Parliament should ‘[e]xtend the existing statutory duty to ensure freedom of speech to include Student Unions’. The new Higher Education (Freedom of Speech) Bill currently being considered by Parliament includes a section which explicitly requires student unions to ‘take steps that… are reasonably practicable’ to secure freedom of speech for members of the student union, students of the higher education provider, staff of the student union, staff and members of the provider, and external speakers. The latest legislative push by the Conservatives seems to be an attempt to address the ‘failures’ of their last bid to secure freedom of speech at universities in the 1980s.
 Hansard, 27 May, 1970, col. 477w.
 Hansard, 23 July, 1974, col. 1283.
 Hansard, 25 November, 1977, col. 2066.
 Ibid., col. 2068; col. 2072.
 UK Government, The Development of Higher Education into the 1990s (London: HMSO, 1985) p. 5.
 Ibid., pp. 33-34.
 Ibid., p. 33.
 Ibid., p. 34.
I Ibid., p. 34.
 Times Higher Education, 24 May, 1985, p. 3.
 Times Higher Education, 11 October, 1985, p. 4.
 Times Higher Education, 15 November, 1985, p. 1.
 Daily Telegraph, 9 November, 1985, p. 1.
 Ibid.; Daily Express, 9 November, 1985, p. 2.
 Daily Telegraph, 9 November, 1985, p. 1.
 House of Commons, Hansard, 12 November, 1985, col. 423.
 House of Commons, Hansard, 11 February, 1985, col. 793.
 Times Higher Education, 7 February, 1986, p. 1.
 House of Commons, Hansard, 11 February, 1985, col. 793.
 Ibid., col. 794.
 Ibid., col. 795.
 Times Higher Education, 14 March, 1986, p. 3.
 House of Commons, Hansard, 21 October, 1986, col. 1120.
 Ibid., col. 1109.
 Ibid., col. 1111.
 Ibid., col. 1114.
 Ibid., col. 1119-1120.
 Ibid., col. 1113-1114.
 Ibid., col. 1118.
 Times Higher Education, 16 October, 1986, p. 4.
 Education (no. 2) Act 1986, s43.
 Ian Cram & Helen Fenwick, ‘Protecting Free Speech and Academic Freedom in Universities’, Modern Law Review, 81/5 (2018) pp. 856-858.
 Remi Adekoya, Eric Kaufmann & Thomas Simpson, Academic Freedom in the UK: Protecting Viewpoint Diversity (London: Policy Exchange, 2020) p. 13.
 Higher Education (Freedom of Speech) Bill 2021, s3, A5.