Revisiting the Legal Framework for Students’ Unions

• This blog was kindly written by Gary Attle, Consultant for Birketts LLP.

• On Tuesday, HEPI and Cambridge University Press & Assessment will be hosting the UK launch of the OECD’s Education at a Glance. On Wednesday, we will be hosting a webinar on students’ cost of living with TechnologyOne – for more information on booking a free place, see here.
• Read HEPI’s weekend blogs on governance and the Research Excellence Framework on the HEPI website here.

The Higher Education (Freedom of Speech) Act 2023 came into force, in part, on 1 August 2025. New and strengthened statutory duties were placed on higher education providers which are registered with the Office for Students (OfS), the higher education regulator in England. These duties require the governing bodies of registered higher education providers to take steps to secure freedom of speech (including academic freedom) for staff, students, members and visiting speakers and to promote the importance of freedom of speech/academic freedom. The Office for Students has a direct regulatory jurisdiction towards registered higher education providers under the provisions of the Higher Education and Research Act 2017 and as ‘principal regulator’ for those registered providers which are charities.

The current Government has indicated its intention to repeal the provisions in the 2023 Act which would have placed an express statutory duty on students’ unions for the first time to secure freedom of speech and a new regulatory power for the Office for Students to take enforcement action against students’ unions for breach of that duty. In a detailed statement to the House of Commons on 15 January this year, the Secretary of State noted the following:

“Student unions are neither equipped nor funded to navigate such a complex regulatory environment, and they are already regulated by the Charity Commission. However, I fully expect student unions to protect lawful free speech, whether they agree with the views expressed or not. I also expect HE providers to work closely with them to ensure that that happens and to act decisively to ensure their student unions comply with their free speech code of conduct.”

It is likely to be the case that a students’ union of a higher education provider which is a charity will be a separate charitable organisation itself, whether an unincorporated association of its members or an incorporated body. However, it would be prudent to check both the charitable status of the students’ union and its corporate status.

The Education Act 1994 (sections 20-22) places a statutory duty on the governing body of specified higher education ‘establishments’ in England and Wales to secure certain requirements in respect of students’ unions of those establishments. The duty extends to a range of governance and constitutional requirements, including ensuring that the students’ union operates in a fair and democratic manner, that it has a written constitution and has a complaints procedure. The governing body is required to approve the provisions of the constitution and review the constitution at intervals of not more than five years. In addition, highlighted for the purposes of this note, at least once a year the governing body of the establishment must bring to the attention of its students “any restrictions imposed on the union by the law relating to charities.”

Here, we turn to case-law of some vintage to illustrate what this might include. In 1971, the High Court in the case of Baldry -v- Feintuck [1972] WLR552 had to decide whether to grant injunctions against a number of individuals connected with the University of Sussex Students’ Union. The students’ union had passed resolutions for payments to be made in support of certain causes, including a campaign to oppose the then Government’s policy for the ending of free milk to school pupils. A student at the university and a member of the union brought legal proceedings against the students’ union officers and a member of staff at the university on the basis that such payments would be ultra vires the students’ union constitution. In granting the injunction against the President and Treasurer of the students’ union (only), the Judge noted as follows:

“although research, discussion and debate and the reaching of a corporate conclusion on social and economic problems formed part of the educational process, the proposed payments outside of the university, formed no part of that process…and no payment for political purposes could possibly be charitable.”

The Charity Commission updated its guidance on ‘Campaigning and political activity’ in November 2022 which it defines as follows:

Campaigning: “awareness raising and efforts to educate or mobilise the public’s support for an issue or to influence / change public attitudes” (including activities which seek to ensure existing laws are observed).

Political activity: “securing support for, or opposing, a change in the law or policy or decisions of central government, local government, or other public bodies, in this country or abroad”.

The basic legal position set out in the Charity Commission’s guidance is that campaigning and political activities by charities can be legitimate and valuable provided they are undertaken only in supporting delivery of the charity’s charitable purposes. The guidance helpfully explains this more fully and the factors which the charity trustees should take into account before deciding to undertake campaigning and/or political activities. The Charity Commission noted that its experience had been that charities had been over-cautious in their approach to such matters and that they were inclined to self-censor, although it noted that it would take regulatory action if there had been misuse of charitable resources.