Campaigning and COP26: What are students’ unions permitted to do?

Laura Moss is a solicitor at Wrigleys.

With the world’s leaders descending on Glasgow in November for the latest COP summit, many students’ unions and their societies will be gearing up to take action on climate change.

This article is a reminder of the activities which an SU may and may not engage with, be that protests, boycotts, campaigns or some other creative way of forcing the world to realise that we need to change the way we do things, urgently, to prevent a global catastrophe from getting any worse.

Excuse the language but…is it ultra vires?

During my year as a sabbatical officer, this phrase was the favourite of a certain type of student politician. Quite why people love this use of Latin is beyond me, but for those who would prefer a simpler approach, we’re just talking about what an SU may do, in law.

Before engaging in any COP26-related activity, an SU should ask itself whether it has the power to do it. There are three aspects to consider:

  • Is it permitted by the students’ union’s constitution, particularly the charitable objects? Chances are, the objects will say something about the students’ union’s objects being the advancement of education of students at a named institution. This means that everything the SU does must be with this aim: it must assist with the education of students, at that particular named institution.
  • Is it compatible with being a charity? Is it for public benefit? Are the trustees complying with their duties in permitting the activity to go ahead, for example is it in the best interests of the SU?
  • Is it compatible with the Education Act 1994? Does it further the interests of students as students? If you’re funding a society activity, does it reflect the fair allocation of resources between societies?

Whatever decision is reached, it should be carefully minuted in writing, with reasons for the decision recorded. This all helps to demonstrate that the trustees have acted reasonably in the circumstances.

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 is planning something COP26-related.

What about society activity?

Ah, the perennial question of whether an SU’s societies are part of the SU or are independent entities. 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.

Even where a society is independent of its SU, any support provided by the SU (whether financial or in-kind) would need to be justified in relation to the SU’s charitable status. 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.

This means that the same rules which apply to the SU, also apply to clubs and societies. Any COP26-related activities organised by societies must be justifiable in the context of the SU’s charitable objects, which are almost certainly about furthering the education of students at that particular institution. The SU and its societies also need to weigh up the risks associated with any campaigning activity.

What is or isn’t acceptable always depends on the facts and the motivations behind whatever activity is being carried out. Paying for two students to attend an XR protest at which there’s a high chance of arrest? Highly unlikely to be permissible for an SU to engage with. Providing room space and staffing for a lecture series about solutions to the climate emergency? Almost certainly fine, assuming the debate can be justified as helping to educate students. However, these are extreme examples and it’s the stuff in the middle that causes the head scratching.

If you have any doubt about whether or not your SU can engage with a particular activity, please get in touch with any member of our SU team. We’d be happy to help.

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