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Charity Commission updates freedom of speech guidance

The UK's Charity Commission has updated its guidance for charity trustees on hosting controversial speakers in response to criticisms that it could restrict freedom of speech on university campuses.21 Nov 2018

Although the changes were prompted by a report into freedom of speech at universities by a joint committee of MPs and peers, the guidance applies to all charities regulated by the Commission, not just student unions. The changes are designed to make it clear that the right to freedom of expression is an important element in furthering educational charitable purposes and enabling discussion and debate.

As well as the changes to its public-facing guidance, the Commission has also updated its internal operational guidance on students' unions (16-page / 503KB PDF). It has done so to ensure a clearer distinction between the trustees of student unions, and their specific obligations, as opposed to student societies themselves and their broader membership.

In a statement, the Commission said that it recognised that the previous guidance had "not always been read in the manner in which it was intended".

"Charitable students' unions and higher education providers play a vital role in providing space for discussion and debate, encouraging students to develop political awareness, to challenge their own views and perceptions and to exchange ideas on a range of issues," said Aarti Thakor, director of legal services at the Commission.

"We want to see all charities thrive for the betterment of the communities they serve. This updated guidance will help trustees ensure balance and make good decisions, bolstering their positive impact on society," she said.

First published in 2013, the Charity Commission's 'protecting charities from harm' guidance is intended to help trustees of charities, including charitable student unions, 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 tackles freedom of speech, with a particular focus on views that purport to encourage or condone extremism, terrorism or other illegal activity.

The Joint Committee on Human Rights published its report on freedom of speech on university campuses in March 2018. While it found no evidence that freedom of speech was being "overly inhibited" on campuses despite media reports to the contrary, it did criticise the Charity Commission's guidance as difficult to use and unduly restrictive. It also raised the possibility of transferring responsibility for regulation of student unions from the Charity Commission to the Office for Students (OfS), which regulates universities themselves.

Among the changes to the Charity Commission's guidance are more of an emphasis on the importance of freedom of speech to charities with the purpose of advancing education, particularly student unions and higher education providers. It also stresses what charities can do in order to support their trustees in managing some of the challenges associated with hosting outspoken speakers and debates, and emphasises that inhibiting lawful free speech could damage the reputation of a student union.

In May, universities minister Sam Gimyah held a 'free speech' summit with representatives from the higher education sector, at which he committed to new guidance clarifying the rules around freedom of speech on campus for both students and universities. The new guidance will be developed by the Equality and Human Rights Commission (EHRC).

Universities expert Julian Sladdin of Pinsent Masons, the law firm behind Out-Law.com, said: "It is helpful that the Charity Commission has taken account of recent criticisms of the potential for its previous guidance to be misconstrued, and sought to acknowledge that student unions have an important role in fostering freedoms of speech and expression in universities, including where the views expressed may be seen as controversial."

"However, while the 'rebalanced' guidance is clearer and intended to encourage rather than prohibit free speech, it will still raise some questions and concerns: about whether it references that people 'should feel safe in a charity's presence' is an encouragement to 'safe spaces', despite Sam Gimyah's open criticism of such policies; and whether the need to show that resources are being applied for the benefit of members will still result in student unions being cautious about funding the costs of security needed to facilitate an event involving an apparently controversial or partisan speaker," he said.

"It will also be interesting to see how this updated guidance aligns with the imminent work of the EHRC in this area which is being promoted by Sam Gimyah, and earlier assurances from the Charity Commission that it would 'embed' or 'merge' such guidance in order to provide greater consistency and clarity," said Sladdin.