In a new article in the Law Quarterly Review, one of the country’s foremost law journals, Dr David Wilde of the University of Reading argues that English universities with charitable status (virtually all English universities) are obliged by charity law to be institutionally neutral on political issues. The implication is that universities in England, and possibly in the rest of the UK, could face regulatory penalties if they engage in political activities.
Wilde’s article, entitled Universities and the Rule Against Political Charities, advances an argument based on two simple premises. First, all charities are legally obligated to be politically neutral. Second, almost all universities are registered charities. The conclusion is inescapable: all these universities are required by law to remain politically neutral as institutions.
The problem, according to Wilde, is that institutions of higher education have for some reason been allowed to pretend that they are not charities – except when it comes to their tax status – and have thereby circumvented or perhaps forgotten about the requirement to be institutionally neutral. There is, however, no good reason to allow this state of affairs to continue. If universities are obliged by law to be politically neutral, we should hold them to that obligation. As such, it is worth considering Wilde’s argument in more detail.
It may surprise non-lawyers to discover that the law at the centre of Wilde’s argument is not legislated in any Act of Parliament. It is instead a precedent set by case-law, formulated through the past rulings of judges rather than statute. That is, it is a so-called “common law” rule. However, this does not make the “Rule Against Political Charities” any less binding, and indeed almost all UK charities abide by it. The key point of the Rule is that any charity must be – and be seen as – politically neutral. In practice, this means that it must neither support nor oppose any political party, or legal reform, or governmental policy change. These restrictions apply in both domestic and foreign political arenas.
The only exception to this rule is that charities may support legal initiatives that further their charitable aims. For example, the organisation Carers UK did not violate neutrality when it campaigned for the passage of the Carers (Equal Opportunities) Act 2004, as the (then) bill advanced the charitable purpose of the organisation and the campaign was carried out in a non-partisan way.
So far, so legally non-controversial. Wilde’s insight is that universities, at least in England but probably in the rest of the UK as well, are also subject to this rule. The only difference between universities and other charities lies in the government body in charge of regulating them.
In England, most charities are registered with the Charity Commission. Universities, on the other hand, are generally regulated by the Office for Students. This is because they are classed as “exempt charities”, meaning not that they are exempt from any legal requirement but that they are overseen by a different principal regulator. A handful of universities are actually registered with the Charity Commission, but this is not the case for the vast majority.
According to Wilde, there is no obvious reason why universities in Scotland or Northern Ireland should not be subject to the Rule against Political Charities as well. However, they are devolved jurisdictions with differing regulators, so lie outside the scope of Wilde’s article.
It is somewhat unclear why the OfS has neglected to enforce the rule against political charities. Over the past decade, many English universities have engaged in political campaigning – for the Stonewall position on trans-rights, for the Ukrainian side in the Russia-Ukraine war, for “net-zero” carbon emissions, to name just some of many causes. We strongly urge the Office for Students to consider Dr Wilde’s argument and, unless its lawyers can refute it, immediately issue a warning to all registered universities that the requirement of political neutrality will be enforced from this point onwards. In the meantime, we encourage all readers to read Wilde’s entire paper in the Law Quarterly Review.