Out-Law News | 16 May 2018 | 4:18 pm | 3 min. read
The charities regulator has published a formal response, in its capacity as regulator of charitable student unions, to a recent report into freedom of speech at universities by a joint committee of MPs and peers. A number of bodies, which includes the government, are expected to provide responses to the report by the Joint Committee on Human Rights (JCHR) following the 'free speech summit' hosted earlier this month by universities minister Sam Gimyah.
The Charity Commission had already committed to reviewing its 2013 guidance on protecting charities from harm and its operational guidance on student unions for internal staff ahead of the JCHR's recommendations. It has also stated its intention to contribute to new planned guidance on freedom of speech in the higher education sector, which will be developed by the Equality and Human Rights Commission (EHRC) following Gimyah's recent announcement.
The Commission has also responded to a suggestion by the JCHR that responsibility for regulation of student unions should be transferred to new university regulator the Office for Students (OfS). The Commission said "whether or not students' unions should or should not continue to be charities or regulated by the Commission, or by another regulator" was a decision for the UK parliament. However, it noted that both universities and unions would remain subject to charity law without a change to legislation "irrespective of regulator".
It added that both student unions and the National Union of Students were broadly in support of the charitable status of student unions, and that "almost all have demonstrated an appetite to ensure their trustees understand charity law and their legal duties and responsibilities".
"I am absolutely clear that charitable students' unions, universities and other higher education providers can challenge traditional boundaries, encourage the free exchange of views and host speakers with a range of opinions, including those who might be controversial or divide opinion," said Charity Commission chief executive Helen Stephenson.
"These activities are entirely in line with their aims to promote education. Our role as regulator is to provide guidance that enables trustees of all charities to carry out their activities while complying with their legal duties and responsibilities as charities and, where necessary, hold trustees to account against that guidance," she said.
Published in 2013, the Charity Commission's guidance on protecting charities from harm is intended to help charity trustees put in place good standards of governance and accountability, so that they can safeguard their charities from terrorism, fraud and other forms of abuse. Chapter 5 of this guidance, which the Charity Commission has committed to review, tackles freedom of speech with a particular focus on views that purport to encourage or condone extremism, terrorism or other illegal activity.
In its report, the JCHR criticised this guidance as difficult to use and unduly restrictive. It also noted that the guidance "does not take adequate account of the importance of debate in a university setting". The Commission pointed out in its response that its guidance is not written specifically for student unions and universities, but to "enable and support all charities to recognise and manage the risks that arise from some activities that may present higher risks and to make those, sometimes challenging, judgements".
"Our guidance should not be used, and is not intended ever to be used, to prohibit speakers with lawful, albeit unpopular, views," the Commission said in its response.
University disputes resolution expert Julian Sladdin of Pinsent Masons, the law firm behind Out-Law.com, said that the Charity Commission's response was "likely to be welcomed within the HE sector".
"Since the introduction of the 'protecting charities from harm' guidance in 2013, both universities and student unions have raised concerns about the impact of the guidance and its perceived restrictions on the activities of student unions," he said. "Hopefully, the Charity Commission's commitment to embed or merge future sector guidance on free speech, being led by EHRC, into its advice to student unions will see greater consistency and clarity going forward."
"The longer term question, however, is whether the government decides that this consistency and clarity is better served by having both universities and student unions regulated by one body, such as OfS, which has a responsibility to promote free speech in the sector; and whether the change in legislation as mooted by the JCHR may follow," he said.