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Freedom of speech helps charity, and society thrive – but it’s not an absolute right

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As registrar of the 167,000 charities in England and Wales, we are witness every day to the outstanding role these organisations play in bettering society. Charities are at their best when they contribute to civil society by building social cohesion, tolerance and breaking down barriers of discrimination.

One of the more spirited and lively examples of this comes from a group not always recognised as charities by the public or indeed by their members – students’ unions. As charities working to advance education they promote or engage in analysis, debates or discussions often on sensitive issues. They challenge traditional ideas and launch progressive dialogue which can develop thinking and help society thrive.

Freedom of speech is not in conflict with any of this. In fact, it is a fundamental consideration for those that run many types of charities. Education and learning cannot move forward unless ideas are open to rigorous challenge and healthy debate.

Avoiding the risk of harm

Freedom of speech does not, however, negate trustees’ important duties to put a charity’s best interests first and limit the undue risk of harm.

The Commission produces guidance to help trustees fulfil those duties. However, we have recognised that our guidance in this area has not always been read in the manner in which it was intended and has not done enough to highlight the centrality of freedom of speech to charities with purposes to advance education. We acknowledge that this may have caused difficulty in decision-making for some trustees.

In our evidence and response to the Joint Committee on Human Rights inquiry, we promised to address that, which is why we are today publishing updated guidance that will help trustees to make good decisions for their members. Our ‘Protecting charities from harm’ toolkit has been amended to help trustees manage some of the challenges associated with hosting speakers and debates.

What can charities do?

This is nothing new and the Commission’s position on this has not changed. We have, though, shifted the tone of this guidance so that it sufficiently stresses what charities can do, and supports trustees in recognising, managing and mitigating risks to their charities.

We want to see charities reaching their full potential. These changes will help those that run students’ unions and other charities maximise the impact of their charities while complying with the law. The important duties placed on trustees are not intended to frustrate students’ unions or any other charities – quite the opposite.

By balancing their duties to ensure their charity’s activities are beneficial rather than harmful, trustees can allow emotive subjects to be discussed and debated, opinions to be questioned and challenged without undue risk of harm.

By complying with our guidance, charities can promote and sustain freedom of speech and expression for their members, while maximising their benefit to society.

Safe spaces

Freedom of speech cannot trump everything else. It cannot be justified at any cost. People should feel safe in a charity’s presence. This is a basic expectation that we and the public rightly have of all organisations that enjoy the privilege of charitable status. It cannot be ignored.

In the context of a students’ union, trustees will need to show that any event is for the benefit of their members, and that it contributes to their purposes by creating an open, accessible space for learning and debate. In its very basic form, they should ensure their charity doesn’t breach the criminal law or other areas of relevant general law like equality law or defamation. But they must also ensure that speakers and ideas are open to challenge. Clearly, this does not prevent charities from hosting speakers considered to be unpopular or controversial.

Common sense dictates that if you want to host speakers with challenging views in order to advance education, charities should be inclusive, create space for challenge, and ensure the environment is sufficiently safe for those that wish to attend by putting some simple checks in place.

Ultimately managing these issues requires balance and good governance. Considered deliberation and careful thought are essential for all trustees to be able to achieve their purpose and act in the best interests of their charity and those they serve.

Decisions around freedom of speech will not always be easy. Yet it would be wrong to underestimate the ability or willingness of students’ unions to get governance right – they are professional organisations. Equipped with this revised guidance, they stand ready to navigate those situations that require challenging judgements.

Whether hosting debates, creating the space for the exchange of ideas, or supporting students to do this themselves through a myriad of clubs and societies, students’ unions and other educational charities contribute immensely to the much-valued charity sector that sets this country apart. These organisations stand for charity in its most literal sense – they are about changing lives and helping society thrive. They represent optimism and change.

This blog was first published by WonkHE on 19 November 2018.

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