Charity law and free speech: a cleft stick for universities?

Among the many things to emerge from the recent spate of press attacks on higher education was a reminder that very nearly all English universities are charities, governed by charity legislation. High on the list of institutions’ offences listed in one such article, was expressing support for left-wing political parties, and the Remain cause in the EU referendum, both things that charities are prohibited from doing by law.

“Universities must be politically neutral in the run-up to the referendum” argued the Daily Mail columnist, and in a technical sense, he was correct. My own university, the University of Exeter, was singled out for criticism and some of my colleagues held up for opprobrium in the Daily Mail’s gallery of academic rogues.

Charitable aims

Until the Office for Students (OfS) gets off the ground properly (on April Fool’s Day), universities are overseen by HEFCE, the ‘principal regulator’ (as the jargon has it) which acts on behalf of the Charity Commission, the main charity regulator in England and Wales. The situation in other parts of the UK is different, but most English universities are exempt charities established for the advancement of education. This means that they do not have to register with the Commission, but in all other respects, they are subject to charity law. It is for HEFCE (and soon OfS) to monitor legal compliance, for all the Government’s apparent preference for the deployment of primary legislation to whip the sector into line.

Yet, while the criticisms levelled by the Daily Mail and others may follow the letter of the law, I nevertheless have a strong feeling that universities would lose a large piece of their soul if they were compelled to adhere to the letter of current charity law requirements regarding free speech on political topics. The rules state that charities may only conduct political activity (such as lobbying) in support of their charitable objectives, and they may not support a political party. During a referendum campaign, charities must also maintain their independence and neutrality.

(Un)healthy debate

As one of the apparently rare academics who is right-of-centre politically and who voted Leave, I would not for all the world have colleagues subjected to rules that require them to take down posters or moderate their political language on social media. People who disagree are free to speak up and put forward the counter-argument – it is simply not true for Jo Johnson to suggest that people like me are under some kind of leftie cosh – and our culture of open debate is all the better for it. I hope Sam Gyimah does not play the same game.

That is by-the-by. There is also obvious conflict, much remarked upon elsewhere, including on Wonkhe, between charity regulations and the ongoing Government drive to impose a duty of free speech on universities. Setting aside the fact, also much remarked upon, that the 1986 Education Act already obliges universities “to promote and protect freedom of speech” (section 43 for the legislation-spotters), a provision of which the Government seems unaware, there remains a perception, or a risk of perception, that universities ought to be restricted in what they can say on contentious topics, and charity law helps sustain this perception.

No gags please

Academic independence and freedom of speech are sacrosanct principles without which no university can claim to be a place of learning at all. So to me, it seems problematic that universities still suffer the Achilles heel of charity law restrictions on political activity, even if issues seldom arise in practice.

Students’ unions are typically registered charities, regulated by the Charity Commission directly, and are subject to the same rules. This too feels odd, as one hardly associates students’ unions with political restraint, but in effect, they are membership clubs which exist to provide benefits for their members, so it does make reasonable sense for them to be conventional charities.

The precise way forward

So how might the rules about the charitable status of universities be fine-tuned? And how might that fine-tuning even bring clarity to the free speech imbroglio? First, it is worth being precise about whom we mean when we talk about ‘the university’. Thanks to academic freedom, were I to speak publicly about the political implications of my own research, I would not be representing the corporate view of my university in the same way that an Oxfam employee, for example, could be said to represent Oxfam.

By definition, a university does not speak with a single voice; it is a diverse community made up of students, academics, and a broad range of other staff. By the same token, a vice chancellor cannot speak for ‘the university’ in the sense of the assembled views of its members; they can only articulate the corporate position in their role as spokesperson, which may or may not tally with their own personal views. This is for the simple reasons that individual academics and students are – thankfully – intellectual free agents.

A separation of powers is needed to establish which parts of the university are subject to charity law restrictions and which are not. To protect academic independence and freedom of speech, an exemption from charity guidelines on political activity should be written into legislation, to guard individuals from rules designed to restrict charitable (corporate) organisations.

Students’ unions should remain registered charities but their members are of course free to speak as students. Likewise, university leaders could at any time they wish lay aside the mantle of office and speak as academics or individuals. But universities as corporate entities should remain subject to the rules, on the basis that it, not the individual academics who work for it, are the charity. That way, no vice chancellor could say ‘the university of X thinks Y on topic Z’, but beneath that protecting umbrella, genuine freedom of speech could reign supreme.

 

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