Students' Unions and Universities
Introduction
As you will see from this briefing, NUS has sought and received 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.
This advice was given by Leading Counsel J. Richard McManus QC of
The advice has today been released to the education press, DfES, UUK, the Charities Commission and the Office of the Third Sector. The related press release is here:
When looking at the applicability of the advice 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
Please note that the advice specifically relates to the law in
NUS Press Release:
newsdesk/education correspondents
date:
06 February 2007
embargo:
immediate
Students’ unions are separate from universities, confirms QC.
NUS has received clear and unequivocal advice from J Richard Mcmanus QC that, in almost all circumstances, a students' union is separate from its university.
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 for legal integration between a university and a union to be contemplated in any proposed restructuring.
Gemma Tumelty, NUS National President said:
“We are aware that certain institutions have attempted to use the Charities Act 2006 as an opportunity to attempt to integrate the students’ union in to their structures. Leading Counsels opinion confirms what we believed – that certain Registrars have been making these overtures without justification.”
She added: “NUS has been keen to work with DFES and UUK to explore ways in which we can improve working relationships between students’ unions and universities and ask them to play a full and active role in that discussion.
At a time when students, as fee payers, have increasing expectations of universities, responsible university managers should be working in partnership with students’ unions to meet these expectations rather than threatening students’ unions by questioning their legal status.”
Ben Ullmann, President of the University of Bristol Union said:
"The University of Bristol Union (UBU) currently has a good working relationship with its parent institution and we would resist any attempt to change the status quo and become a university department. In order to act as a truly democratic and representative voice for students, students' unions must retain their relative independence and autonomy, both financially and strategically. Becoming a department would be a tacit acceptance that we were just part of the system."
ENDS
Notes
? Following is a brief summary of Leading Counsel's opinion. The full opinion is available at http://resource.nusonline.co.uk/media/resource/qc%20opinion%20on%20Charities%20Act.doc
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 University of Leicester Students' Union also makes it clear that students' unions will not generally be regarded as part and parcel of a university. Whilst this was a decision in the law of VAT it is of general relevance to this question.
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 4-5 Grays Inn Square. Leading Counsel was instructed by Bates Wells and Braithwaite solicitors.
NB Please note that the advice specifically relates to the law in England and Wales.
? The National Union of Students – a confederation of students’ unions - exists to promote, defend and extend the rights of students, and to develop and champion strong students’ unions. Students’ unions in higher education form a recognised and valued sector of organisations that act both as representative and campaigning bodies, and providers of social, cultural and welfare facilities. They are regarded as a key component of the distinctive offering of higher education across the UK.
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