Can universities campaign for ‘in’ or ‘out’ in the EU Referendum?

First posted 7 March 2016

The Charity Commission has produced guidance for charities about the legal framework within which they should, if they so desire, become publicly involved in the debate leading up to June’s EU referendum.  

As charities, universities must never be party political, but they are permitted, in certain circumstances, to engage in “political activity”, defined by the Commission as activity which is aimed at securing or opposing a change in law, public policy or a decision of central or local government or other public body. The main constraint is that any such activity must further or support their charitable purpose, which is broadly to advance education and research for the public benefit.  

The first question, therefore, is for universities to decide whether articulating a position on the EU referendum furthers their charitable purpose in some way. The Commission makes it clear that this must go beyond the availability or loss of EU funding. However, concerns about the impact of EU membership in terms of the ease of teaching and research collaboration or the benefits of free movement of staff and students are more likely to be regarded as sufficiently ancillary to the charitable purpose to justify taking a position. The Commission advises that the fact that the EU is the source of all or part of charity’s funding is made clear as part of any campaign so that the reasons for that charity’s involvement can be fully assessed. 

Having decided to articulate a position, the university governing body, as its trustees, needs to make sure that the methods used to publicly set out that position are effective and proportionate. This is as part of the overall duty to make best use of charitable resources.  

Care must also be taken in ensuring that a university’s involvement in the debate is not hijacked by any of the campaigning “remain” or “leave” groups, or by individual trustees or members of staff seeking to advance their own causes. Any action must not seek to influence individual voter behaviour, as opposed to informing or seeking to influence public opinion.  

The Commission’s guidance recommends that a record should be kept of the university trustees’ decision, covering: 

·         How the agreed action is expected to further the university’s charitable purposes;

·         Why taking the action is in the best interests of the charity;

·         How any risks (e.g. loss of funding, damage to reputation, conflicts of interest, exploitation by third parties) will be managed. 

If the Commission is concerned by the actions of a university, then it can, at the request of HEFCE as principal regulator take action, including giving advice to remediate the breach of charity law or requiring trustees to make good any losses to the university and, in very extreme situations, removal of trustees.

 All this might encourage university trustees to steer clear of an institutional position on the EU referendum. Clearly, whilst charities can engage in political activity, there is no obligation on them to do so. However, it would be a pity if a decision on the vital question of the UK’s continued membership of the EU were made without public understanding of its impact on this very important part of our nation’s civic, intellectual and economic life (and indeed why UUK’s activities around the referendum are so welcome). It could even be argued that if the impact on the future of a university is significant, not to reflect upon and seek to inform the public about the consequences of a decision either way is not prudent stewardship. It is therefore to be hoped that university governing bodies adopt a risk-based approach to the decision.

 A copy of the guidance can be found here.

Smita Jamdar 
Partner and Head of Education
T: 0121 214 0332
E: smita.jamdar@shma.co.uk
W: www.shma.co.uk

From → General Interest

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