30th November 2021Making sense of Students’ Union regulation

There’s a recent Twitter meme where the bland trips that men would take if time travel was possible are pilloried. My own journey would be back to 2004, explaining to myself – a newly elected students’ union officer – how important a part the 1994 Education Act would play on my career.

Introduced by the John Major government, the 1994 Education Act is the niche legislation that outlines what a University must ensure happens within its students’ union (“SU”). It is completely untested – there’s possibly some award for an act of parliament to have never been through a court in almost 30 years – and part of its original aim, to require individual membership by students, was defeated in the Lords. It is an odd piece of law and often confusing to universities and students’ unions alike.

A university hoping to fulfil its duties under the Act can take solace in the fact that most of them are embedded in an SU’s constitution. In particular, the NUS model documents which all but a tiny number of unions use covers almost all of the requirements on elections, length of service for representatives and transparency requirements for finances. The last thing many University governance or legal teams want to worry about is how the Chess Club is funded.

In my experience, sometimes universities do not always appreciate is the interactions with other regulatory regimes for students’ unions. All SUs are charities and, in most case, companies with the accompanying oversight from Companies House and the Charity Commission. Regarding the university’s position under the 1994 Act this causes some tensions.

The 1994 Act presumes a model of university paternalism that was widespread 4 decades ago but has not kept up with the changes in both SU and wider charity governance sophistication. The 2006 Companies Act & 2011 Charities Act require an independence by the SU trustees. They are required to ensure they oversee charity dealings without external control. Compare that to the expectation in 1994 (when SUs were exempt charities) that the university would be able to impose specific changes on the SU.

These are challenges but not insurmountable ones if our governance approaches do not rely on crude legislative or financial levers. Where changes are needed the best approach, as so often, is discussion between SU Trustees and the University on what is wanted from both parties so that the University can have the assurances its requires for the 94 Act but the SU Trustees can meet their Charity law responsibilities too. Start conversations early and informally before using structures to make changes and hopefully no time travel will be required.

Nick Smith

Nick Smith has over ten years’ experience of supporting leaders in higher education institutions. His work developing the model governing documents used by over 200 Students’ Unions was used as an example of good practice in the House of Lords.  He has an excellent understanding of the challenges facing SUs of all sizes as campaigning, representative and service delivery organisations. He was Company Secretary of the National Union of Students in the year it won a Third Sector Award for Trustee Boar of the year. He oversaw all aspects of NUS’ democracy from the National Executive Council to the 4 day NUS National Conference involving 1,400 participants.

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