23 September 2021 - Article
In February the Equality and Human Rights Commission (‘EHRC’) published significant new guidance on freedom of expression issues for universities and student unions hosting students.
This new publication is a helpful reminder for all charity trustees, not simply for trustees of student unions or educational institutions, that they should carry out careful due diligence when hosting speakers and ensure that they are acting within their powers and their purposes to host, or to refuse, a particular individual.
In early 2018 we saw the Minister for Science and Universities, Sam Gyimah, fire an aggressive opening shot in a debate over the Charity Commission’s regulation of student unions in 2018, when he declared it was ‘in his sights’ for its approach to hosting controversial speakers.
His comments stemmed from ongoing debates in higher education and government about the implications of ‘no-platforming’, which is seen as a common practice amongst student unions, for freedom of speech rights.
The Joint Committee for Human Rights had also launched an inquiry in 2017 into ‘Freedom of Speech in Universities’ to which the Charity Commission contributed evidence, and responded to its final report.
This inquiry highlighted the importance of freedom of speech in universities is enshrined in Education (No. 2) Act 1986. However, the Joint Committee’s report noted that this came up against the ‘chilling effect’ of the ‘Prevent’ duty and ‘unduly complicated and cautious guidance from the Charity Commission’.
The Joint Committee’s conclusions on the Charity Commission’s role were critical, concluding that ‘the Charity Commission’s approach to regulating free speech in student unions is problematic’.
In response the Charity Commission committed to update its operational guidance for student unions and its guidance for charities hosting speakers, but noted that ‘this is nothing new and the Commission’s position on this has not changed… we have, though, shifted the tone of this guidance’.
We have yet to see these updates from the Charity Commission. However, in the interim, the new EHRC publication aims to collect together the issues in this area, and includes a contribution on charity law to be read alongside the Charity Commission’s existing guidance.
Taking decisions on hosting speakers
The new guidance from the EHRC recognises the wide range of legal considerations for universities and student unions to consider in hosting speakers and allowing ‘no-platforming’ practices.
These include the strict application of, and best practice for student unions in relation to, s43 of the Education (No. 2) Act 1986. However they also extend to managing responsibilities and risks in relation to the Equality Act 2010, the ‘Prevent’ duty and defamation laws.
All charities hosting speakers, need to consider the requirements of charity law in providing a platform and premises to external speakers.
In particular it is crucial to ensure that any decision by a charity to invite a particular speaker, notwithstanding other legal considerations, is within its charitable objects and for the public benefit.
The decision must also be taken within the acceptable confines of ‘political activity’ for a charity. This means the charity must not endorse any political party or be seen to campaign for a change in the law unconnected to its purposes, by hosting a particular speaker.
Finally, the decision to allow a speaker needs to be in the charity’s best interests and one which it is reasonable for the charity’s trustees to take. Trustees should carefully record their reasoning and decision-making for hosting a speaker, taking into account ‘the other surrounding risks’ and responsibilities.
This new guidance, which summarises the web of different considerations in hosting or refusing speakers, will, we are sure, be a helpful guide in this respect.
However we would also recommend any charity concerned about hosting, or refusing, a particular speaker takes advice on how to work through these issues.