Students' Unions and their Relationship with the University
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We have today had clear and unequivocal advice from J Richard Mcmanus QC that, in almost all circumstances that we are aware of, a students' union is separate from its university. Indeed, Leading Counsel is doubtful that it could ever be lawful under the Education Act 1994 for a students' union to be integrated with its university. This doubt makes it unwise in the opinion of leading counsel for legal integration between a university and a union to be contemplated in any proposed restructuring.
What follows is a brief summary of Leading Counsel's opinion. A full opinion will be circulated shortly.
NUS has been advised by Leading Counsel that, in general terms, a students' union is not to be regarded as part and parcel of a university. We have been further advised that the Education Act of 1994 clearly distinguishes between a students' union and a university. In addition, the decision of the Court of Appeal in Commissioners of Customs and excise and the
Factors such as staff being employed by the university, dependence on funding from the university, contracts being entered in to by the university for the benefit of the students' union, and premises being provided by the university, do not, in themselves, whether taken individually or collectively, make the students' union a part of a university.
The most important factor is what the legal instruments setting up a university and a students' union provide. In the absence of there being express provision in these instruments that the union is to be regarded as part of the university, it will, in Leading Counsel's opinion, be very difficult to establish that the students' union is in fact part of the university.
The Charities Act 2006 is not intended to change the legal status of a union other than in relation to charities law. The effect of the amendments of the 2006 Act is clearly to remove exempt status that students' union enjoyed parasitically under paragraph (w) schedule 2 Charities Act 1993. The amendment would have been nugatory if students' unions enjoyed exempt status by virtue of being universities under paragraph (b) and (c) of the 1993 Act. Accordingly, students' unions who are charities will now have to be registered with the Charities Commission if above the relevant financial threshold.
The Charities Act 2006 cannot be read as achieving any other substantive change in the law relating to the relationship between the students' union and the university. It certainly does not begin to abrogate the legal relationships, powers and duties to be found in the Education Act 1994
This advice was given by Leading Counsel J. Richard McManus QC of
It is important that you look at the Royal Charter, Statutes, Ordinances or Instrument & Articles of your parent institution. If there is a reference to the students' union being expressly a part of the institution as opposed to it saying that there shall be a students' union, or if you have any other questions, please contact
The full advice note from counsel is being drafted now and will be released to members, university officials and national/governmental bodies over the next week or so.
Please note that the advice specifically relates to the law in
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