The Charity Commission for England & Wales (the “Commission”) has last week updated its guidance for charity trustees managing some of the challenges associated with hosting speakers and debates (the “Guidance”). At the same time the Commission has also updated its operational guidance for students’ unions (known as OG48). These are Commission publications but will be valuable reading for Scottish charities educational charities, students’ unions and others hosting debates and similar events. Of course, one distinguishing feature between England and Wales compared to Scotland is that all Scottish charities will be registered with OSCR. Another cross-border difference is the place of the Office for Students in England. There is no equivalent in Scotland.
Supporting freedom of speech but recognising the limits
In preparing the updated Guidance, the Commission has attempted to balance the roles that students’ unions and education providers play in providing space for discussion and debate, encouraging the exchange and challenging of political views; whilst ensuring that they do not fall short on meeting their legal duties. Those duties (in Scottish parlance) being to act:
- in the interests of the charity;
- in good faith;
- to further the charity’s purposes;
- with the care and diligence that is expected when looking after someone else’s affairs; and
- adhere to other statutory duties (such as health & safety, licensing or equalities).
It has also been recognised by OSCR that an ‘asset’ of the charity that must be protected is its reputation.
The Commission has also provided practical advice. This should help charities that regularly host or hold events at their premises, use speakers at events or distribute literature to further their charity’s purposes through the promotion and exchange of views and ideas whilst ensuring that the charity is (and those engaging with the charity are) protected. With the launch of the Guidance, the Commission said that an aim is to help trustees in “bolstering their positive impact on society” and that the Guidance “should not be used to prohibit those with lawful, albeit unpopular, views.” Indeed, OG48 points out that some topics and views may even be considered “irritating”, “heretical” or “provocative” but remain lawful to be air.
Ultimately, whatever steps trustees take in connection with speakers and debates it must be a decision taken with a view to furthering the charity’s purposes. This is something that is consistent with previous OSCR guidance in the ‘political space’ on the Scottish Independence Referendum or the UK Referendum on the EU.
What the new Guidance says
The new Guidance highlights and emphasises:
- the importance of freedom of speech and the integral role it plays in supporting charities’ activities when carrying out educational purposes. It stresses that “provided speech is legal, the right to speak freely includes saying things which may offend, shock or disturb others”;
- the role students’ unions and HE providers have in the context of free speech and educating through activism and discussion;
- what charities can do in order to support trustees in meeting some of the challenges associated with hosting speakers and debates, advising trustees to “be alert to, rather than averse to, the risks of inviting speakers to participate”. It suggests that “a measured and proportionate risk-based approach” should be adopted when organising events; and
- the reputational risk should a charity be seen to be inhibiting lawful free speech without due cause.
Implementing the Guidance
The Guidance is careful not to be overly prescriptive, emphasising instead the need for an awareness of possible risks and proportionate response to the specific circumstances of each case. It is all, it would seem, a delicate balancing act. Such a balancing act might be seen in the context of ‘no platform' policies, which OG48 considers and provides some guidance.
From the Guidance and OG48, some key considerations for trustees include:
- be confident that an event, or any associated publications, are in the best interests of the charity.
- not be seen to be presenting barriers to free speech and the expression of legal but unpopular opinions.
- the Guidance makes reference to the UK’s counter-terrorism initiative, Prevent, and the duty that it places on some educational charities to have “due regard to the need to prevent people from being drawn into terrorism”. The Prevent duty itself does not prohibit the expression or debate of views which are unpopular or controversial. The Guidance outlines that those in education should be provided with a broad range of views and opinions in order to allow them to make up their own minds on controversial issues. Charities should not be a barrier to this. It should be noted that there is separate Prevent guidance for Scotland.
- have procedures in place which are properly implemented to prevent advantage being taken of the charity’s status, reputation, facilities or assets in order to promote extremist or discriminatory views/behaviours or incites hatred.
- knowledge really is power and trustees, and those involved in the organisation of events, must thoroughly appraise themselves of who proposed speakers are. This is both to encourage free speech and thought and to ensure the charity is not used to provide an (apparently reputable) outlet for unlawful views.
- the process for selecting speakers should be rigorous but not so onerous that it becomes a proxy barrier to the hosting of events.
- adequately assess the risks associated with any proposed event, meeting or publication, and the risks that hosting (or prohibiting) such events may have on its assets, people, beneficiaries and reputation.
- manage events effectively, having in place a clear process for dealing with incidents should any arise (including where any reports should be made, including as an OSCR ‘notifiable event’). This extends to providing speakers, authors, translators and editors with clear guidance ahead of events. While it will be in the nature of some to test them, setting clear boundaries as to what the charity is willing to accept will be helpful for all involved. Such guidance might also be set out as terms to be included in the conditions of rental/hire of a venue/facility.
- take steps to prevent the charity’s activities and views from being misinterpreted.
- keep records of decisions made on events, speakers and publications. An effective complaints handling procedure should also be put in place.
- a recognition that while views made in a personal capacity may in themselves be acceptable but that advocating those views might be in conflict with one’s role as a trustee of a particular charity. Again, alignment with the charity’s governing document and its purposes is critical. In such cases the individual might have to step down as a charity trustee.
- establishments such as universities connected to or partners of e.g. a students’ union must recognise their own duties in this area including their own purposes.
Some concluding points
You should be alert to, rather than averse to, the risks of inviting speakers to participate in your charity’s events or meetings and take a measured and proportionate risk-based approach.
It can be acceptable to refuse an individual or organisation to use a venue or facility where the aims of that organisation or individual’s activities conflict with your charity’s purposes or there is risk of public disorder or there is a risk of alienating the charity’s beneficiaries or supporters. A ‘no platform’ policy or decision needs to have a purposes-led underpinning to it.
While a charity cannot have as its purposes the promotion of a political party, a charity can engage in and be a platform for political discourse and activism in the furtherance of its purposes.
Set out your policies in writing to deal with these matters to be able to be on the front-foot.
All decisions and policies must be set in the context of what furthers the charity’s purposes.