Keeping it legal: a reminder on the ultra vires rules for students’ unions

Students’ unions must take into account charity and education law when deciding what activities to engage in.

We act for many students’ unions and are often asked about the rules on ultra vires, in other words, what activities a students’ union may legally engage with.  This is a particularly hot topic at the moment, with major events such as the conflict in Gaza and an upcoming election prompting debates and action at many students’ unions.  This article is a reminder of the rules.

Before engaging in any activity, a students’ union should ask itself whether it has the power to do it.  There are four main aspects to look at:

1. Is it permitted by the students’ union’s constitution, particularly its charitable objects? 

In the vast majority of cases, the objects of a students’ union are the advancement of education of students at a named institution.  In other words, does an activity further the education of students at that named institution?  If it doesn’t advance education in some way, the students’ union shouldn’t be doing it.

2. Is it compatible with being a charity?  Is it for the public benefit? 

Does the activity entail the trustees complying with their duties under charity law and, in many cases, company law?  This includes duties to protect the reputation of the charity and obligations towards beneficiaries, volunteers and staff.

The Charity Commission has produced some useful guidance for charities engaging in campaigning and political activity.  We have also published a couple of recent articles which are highly relevant:

Charitable campaigning and political activity: can charities and politics mix?

Charity campaigning and political activity in an election period

3. Is it compatible with the Education Act 1994? 

Is a students’ union operating in a fair and democratic way, with its resources allocated to groups and clubs in a fair way and according to a written policy?  Are any external affiliations approved by all members at least once a year?  This last point raises an interesting question about SU societies.  If societies are considered to be part of the SU, it would mean that any external affiliations these societies have should be approved by all SU members.  Whether or not this happens in practice at all SUs is debatable.

4. Are trustees considering their duties under section 172 of the Companies Act 2006 (where a students’ union is a company)?

Where a students’ union is a company, its trustees (as company directors), must have regard to their legal duties under section 172 of the Companies Act 2006.  This requires directors to act in a way which helps the company to achieve its purposes.  In making decisions, directors make take into account a variety of factors, including the long-term consequences of those decisions; the interests of employees; the need to foster relationships with suppliers, customers and others; the impact of the company’s operations on the community and the environment; its reputation for high standards of conduct; and the need to act fairly between its members.  This gives students’ union trustees a broad framework in which to act: although they must always have regard to the charity’s purposes, decisions should also be set in a wider social, political and environmental context.

Recording decisions

When a students’ union decides to pursue a particular course of action, the decision to do so must be carefully minuted, recording reasons for the decision.  This is to help demonstrate that trustees have acted reasonably in making that particular decision.

Good practice

We have seen some good practice in students’ unions in relation to student resolutions.  For example, one students’ union we have worked with has a designated committee which assesses resolutions before they are put to a student vote.  The job of that committee is to ensure that a particular resolution is appropriate for the students’ union to be voting on, and that any course of action to which the students’ union will be committed, is a lawful one. 

We have also helped students’ unions reword proposed resolutions so that they are more clearly focussed on the advancement of education of students.  Doing this means that students still feel empowered to debate and vote on important political topics, without breaching the ultra vires rules.

Upcoming webinars on dealing with contentious topics

We are planning a series of free webinars in May which will look at the question of approaching contentious topics.  The first webinar will look at some strategies to prevent problems from arising in the first place, with the second webinar considering how problems may be managed once they’ve arisen.  They will touch on freedom of speech, discrimination, harassment and the rules on ultra vires, as well as discussing what approach the various regulators are likely to take in relation to these things.  Sign up to our mailing list to hear more about these webinars and to reserve your place once bookings are open.