How can student's unions run campaigns and engage with political activity whilst complying with Charity Commission guidance?
Across the country, the university term is starting again. As students return to campus and students' union (SU) societies start looking for new members at the annual Freshers Fair, SUs will be considering what campaigns will be the focus of the coming academic year.
Many students are heavily involved in debates on hot societal topics, such as climate change, decolonising education, anti-semitism and tackling inequality. The cost of living crisis, and its effects on students, is also a highly topical subject for many students. This article is a reminder of the activities which an SU and its societies may or may not engage with.
Campaigning and political activity
There are strict rules which govern what kind of campaigning and political activity a charity may do. Simply put, any campaigning activity must be justified as furthering the charity's purposes and the Charity Commission is clear that it must not become the sole activity or the reason for the charity's existence. The Charity Commission has useful guidance on this (CC9) (see here) and its Official Guidance for students' unions (OG48) has a handy section on political activity and campaigning (see here). It's well worth reading both of these if your SU or any of its societies are planning political or campaigning activity.
Does the SU have the power?
Before engaging in any political activity or campaigning, an SU should ask itself whether it has the power to do so in law. There are three key aspects to consider:
1) Is the activity permitted by the SU's constitution, particularly the charitable objects? The objects will almost always involve the advancement of education of students at a named institution, especially where an NUS model constitution has been used. Consequently, everything the SU does must further those objects, that is to say, it must assist with the education of students at that particular named institution. It may be possible to justify debates and campaigns as furthering students' education, but it always turns on the facts.
2) Is it compatible with being a charity and is it for the public benefit? If the trustees permit the activity to go ahead, are they complying with their duties and acting in the best interests of the SU?
3) Is it compatible with the Education Act 1994? If an SU is funding a society activity, it needs to reflect a fair allocation of resources between societies. If the activity involves the affiliation of the SU with external bodies, this must have been approved by all students, annually or more frequently.
Is a society part of the SU?
We find that this question crops up regularly and the lawyer's answer, as always, is 'it depends'. We sometimes see societies which are separate registered charities: they are not part of the SU. In contrast, where a society has a constitution prescribed by its SU, has no separate bank account and isn't affiliated to any external organisations, it's highly likely to be part of its parent SU. For these purposes, it's safest to assume that societies are part of the SU and that any activity a society engages in must be possible for the SU itself to do.
SUs should also bear in mind the Higher Education (Freedom of Speech) Bill, currently making its way through Parliament. If approved this will place direct obligations on SUs in respect of freedom of speech. The extent to which this will affect an SU's campaigning and political activity remains to be seen, but it is something we will be watching closely.
In making a decision about whether to permit a particular campaign or political activity to go ahead, trustees will need to demonstrate they have acted reasonably in the circumstances and be able to justify their decision. Carefully minuting any decisions taken in writing and setting out the reasons for the decision recorded will assist with this.
If you have any doubt about whether or not your SU can engage with a particular activity please do get in touch with our SU team and we will be happy to help. We also recently hosted a webinar on this topic which is available to view here.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.