From ‘extreme’ to ‘controversial’: the Charity Commission, students’ unions and freedom of speech

From ‘extreme’ to ‘controversial’: the Charity Commission, students’ unions and freedom of speech

Simon Perfect

 [My parent university] would like us to push more than we do. But sadly I’ve got to be risk-averse… It’s led to some speakers being talked about and being stopped before they’re even presented as potential candidates.

This quote comes from an interview with a Chief Executive Officer of a students’ union in 2016. Students were asking the union to host external speakers, but the CEO felt he needed to avoid ones with potentially controversial views. As a result, the range of voices that could be heard in the university was diminished.

The CEO’s risk aversion was a result of the complex interplay between two regulatory structures: the Prevent Duty, the legal duty on public bodies in England, Scotland and Wales to “have due regard to the need to prevent people from being drawn into terrorism”[1]; and charity law as enforced by the regulator of students’ unions, the Charity Commission for England and Wales. This interplay has received little attention in the otherwise considerable discussion about the role and impact of the Prevent Duty in universities.

Research I have conducted with Professor Alison Scott-Baumann of SOAS shows that the Charity Commission is an important player in the politics of extremism and freedom of speech on campus. In 2016-17, we interviewed 20 members of students’ unions around the country (mainly CEOs) to investigate these issues. Our findings will be published in a forthcoming book (Scott-Baumann and Perfect Freedom of Speech in Universities: Islam, Charities and Counter-terrorism).

This article argues that the Charity Commission’s approach to tackling extremism in students’ unions has risked chilling freedom of speech on campus. It also explores how the Charity Commission pushes compliance with the Prevent Duty among students’ unions, and how it applies the concept of ‘extremism’ on the ground.

Legal context: the Prevent Duty and charity law
Universities have two legal duties which are often considered to be in tension: a duty to uphold freedom of speech within the law, and the Prevent Duty.[2] In 2015 the Home Office published the Prevent Duty Guidance for Higher Education institutions, which among other things advises universities on how to handle requests for external speakers with extreme views. There has been serious debate about the status of this Guidance, and how closely universities need to adhere to it. In a judicial review in 2017 (the Salman Butt case), the court clarified that the Guidance does not apply to forms of extremism that do not pose the risk of drawing people into terrorism; and that universities do not have to cancel events with extreme speakers who do not present such a risk.[3]

The two duties – to uphold freedom of speech and to prevent people from being drawn into terrorism – apply to university governing bodies, but not (directly) to students’ unions.[4] Students’ unions are distinct legal entities from their parent universities. Most are charities, and since 2010 have been regulated by the Charity Commission. In recent years the Charity Commission has had a particular concern to crack down on extremism in the charity sector, including within students’ unions.

As charities, the unions have additional duties and restrictions on their activities under charity law. Charity trustees are required to ensure that the charity’s activities further its charitable purposes (which in the case of students’ unions are usually about supporting the education and welfare of students); are for the ‘public benefit’; and do not place the charity’s reputation at undue risk. They also have their own duties regarding extremism. According to guidance issued by the Charity Commission, charities would be in breach of charity law “where they promote extremist views” – even if such views “are not violent or not likely to incite violence” and even when the expression of them falls “well below the criminal threshold”.[5] Regarding external speakers with controversial views, charities must weigh up the benefits and risks, including the risks that the charity’s reputation might be damaged by association with such speakers.

The Charity Commission, extremism and freedom of speech
In our research, we wanted to explore how the Charity Commission’s regulation of students’ unions since 2010 has impacted on students’ unions’ activities and freedom of speech, if at all. In general, it appears that the Charity Commission is a light-touch regulator of the unions, with some of our CEO interviewees reporting very little interaction with it.

However, there is evidence that when it does intervene in students’ unions, the Commission has sometimes encouraged them to be risk-averse regarding external speakers. We found this was the case in our analysis of correspondence between the Commission and a students’ union which took place from 2016 to 2018.[6] The Commission was investigating the union following media claims that the union’s Palestine and Islamic Societies had hosted speakers who were alleged to have made offensive remarks in the past. In his correspondence to the students’ unions, a Commission officer expressed scepticism that hosting such speakers (some of whom had publicly recanted of their past comments) could be for the public benefit, or could be of value for students’ education. The implication was that the union should have avoided hosting these speakers, though there was no evidence that they had made illegal comments in the events in question.

When the Charity Commission intervenes in the sector, it appears that it has focused on the threat of extremism and has sought to push compliance with the Prevent Duty. Two people whose unions had been audited by Commission officers in 2015 told us that the officers had discussed the risk of radicalisation among Islamic Societies, and had asked how the students’ unions were following the Prevent Duty Guidance. The Commission officers also said that while students’ unions could adopt a ‘Preventing Prevent’ policy on paper, in practice they have a duty to protect their beneficiaries from harm, and the way to do that is to follow the Prevent Duty Guidance. The Commission’s interest in students’ unions’ compliance with the Prevent Duty also emerged in our analysis of the correspondence discussed above. The Commission officer enquired about whether the union’s trustees opposed Prevent (they did), and said that if they refused to work with it they must put in place alternative processes to manage any risks arising from the union’s activities.

As discussed above, the Prevent Duty applies to university governing bodies but not students’ union trustees. As confirmed in the Butt case, universities can choose not to follow the Prevent Duty Guidance if they decide in a particular case that their freedom of speech and academic freedom duties are more important. Despite this, it seems that the Charity Commission has sought to push students’ unions to comply with the Duty, and further to adhere to the Home Office’s Guidance, by presenting it as the only realistic way for charity trustees to meet their charity law requirements.

Our research also reveals how the concept of ‘extremism’, which underpins the Prevent Strategy, is interpreted and expanded in practice in the charity sector. In the correspondence, the Commission officer did not claim that the union’s speakers were problematic because they held views which may lead a person into terrorism, nor because they were ‘extreme’, but rather because they were ‘controversial’. What was meant by controversial was never explained, but it seems that the Commission relies strongly on media reporting of charity events, rather than on more objective criteria, as the basis for its assessment of whether or not an individual is indeed controversial. Focusing on the ambiguous concept of ‘controversy’ reflects the Commission’s guidance set out above – charities are told to be cautious about, or even avoid, promoting certain views which, though offensive, “might fall well below the criminal threshold”. This approach expands the categorisation of views which are to be considered problematic well beyond the scope of the Prevent Duty (which, as confirmed in the Butt case, is concerned with extreme views that pose a risk of drawing people into terrorism).

There is a risk that some students’ unions, when faced with this kind of intervention from the Charity Commission, will become unnecessarily risk-averse and likely to turn down requests for speakers with marginal (but lawful) perspectives, who should actually be allowed to speak. We saw this with the CEO quoted above, whose union had faced accusations of hosting extreme speakers and had been audited by the Charity Commission.

Such caution regarding potentially controversial external speakers undermines the capacity of universities to champion freedom of speech and rigorous debate. There is a strong case to be made that societies gain more from open and critical debate about marginal, challenging or offensive views than they do from the suppression of them.

In 2017-18, the Joint Committee on Human Rights in Parliament held an inquiry into freedom of speech in universities. Drawing on our evidence as well as that provided by others, the inquiry found that the Commission’s guidance “could deter speech which is not unlawful and does not take adequate account of the importance of debate in a university setting”.[7] Following this, the Charity Commission updated its guidance to students’ unions in 2018. It now contains an explicit confirmation that freedom of speech “should form part of the fundamental consideration of the activities of [a students’ union] in furthering its educational objects”, and that a union’s activities may involve dealing with “political, controversial, irritating, contentious, heretical, unpopular or provocative” issues.[8] This is an important step and it is to be hoped that this will embolden students’ unions when hosting divisive speakers.

Conclusion
Our research reveals the complex interactions between the Prevent Duty and charity law, and how compliance with the Duty can be pushed onto institutions which are not directly subject it. The research also gives insight into how people tasked with tackling extremism in the charity sector (including Higher Education institutions) identify views that are potentially extreme. Rather than focusing on views which are likely to lead people into terrorism, some people with this responsibility adopt a much broader approach, based on whether they find particular views controversial or offensive. There is a danger that this can lead to some people with marginal views being unfairly labelled as ‘extreme’.

A tighter policy definition of ‘extremism’ would not necessarily resolve this issue, since what matters is how people with Prevent responsibilities interpret that concept. More research is needed into what such people in different sectors (such as universities, schools, healthcare and prisons) understand by ‘extreme’ views, and how in practice they identify them.

References:
1. Counter-Terrorism and Security Act 2015, s. 26.
2. The duties arise, respectively, from the Education (No. 2) Act 1986 and the Counter-Terrorism and Security Act 2015.
3. See, Butt v Secretary of State for the Home Department [2017] EWHC 1930 (Admin), paras. 30, 98 and 99.
4. Students’ unions must follow their own university’s freedom of speech Codes of Practice. The university governing body, not the students’ union trustees, are required to fulfil the Prevent Duty; however, the Duty applies to all premises owned by the university including any used by the students’ union.
5. Charity Commission (2018) ‘Chapter 5: Protecting charities from abuse for extremist purposes’. See, Charity Commission, Protecting Charities from Harm: Compliance Toolkit.

 

Simon Perfect is a Tutor and researcher at the School of Oriental and African Studies (SOAS), and a researcher at Theos, the religion and society thinktank. He is the lead author of a major new study by Theos into religion or belief in universities: Simon Perfect, Ben Ryan and Kristin Aune (2019) Faith and Belief on Campus: Division and Cohesion. Exploring Student Faith and Belief Societies

Image: ‘Free Speech’ by Newtown Graffiti. CC BY 2.0.

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