The University Structure

• The university, the student union and student clubs and societies
• The relationship between the university and the student union
• The relationship between the student union and university clubs and societies

The Relevant Legal Provisions

• Legal obligations of the university
• Legal obligations of the student union
• Relevant criminal law

Complaints

• Complaints about the Student Union
• Types of complaint about the student union
• Complaints about the University, staff or students
• Types of complaint about the university
• Appeal to Office of the Independent Adjudicator (OIA) or the Scottish Public Services Ombudsman (SPSO)
• Complaints to the Police

Types of Event

Case Studies

 The University Structure

 For more detail, including relevant legal provisions, please click on each main heading below

It is important to understand the university structure and the relationship between each of the bodies when challenging BDS and other anti-Israel activity.

The university, the student union and student clubs and societies

Normally it will be the student union or a student club that is organizing the BDS debate or anti-Israel event.

The university and student union are separate bodies with separate constitutions but they have a close legal and practical relationship. Both organisations owe duties to students. In addition your university also has significant legal obligations in relation to the conduct of the student union and students, which can be invoked where necessary. See Case Study 1.

The relationship between the university and the student union

* The university must take steps to ensure its student union operates fairly and democratically and is accountable for its finances.

* The university should also ensure the student union has a complaints procedure which should provide for an independent person appointed by the university to investigate and report on complaints. See Case Study 2.

* The university must ensure the student union publishes details of donations, subscriptions and affiliations to external organisations. Note that these provisions could be relevant if there is an affiliation to a BDS organisation.

* The university must prepare a code of practice as to how these requirements are to be carried into effect. The university must bring this code, the restrictions imposed on the student union by charity law and the requirement for freedom of speech within the law to the attention of all students at least once a year.

In practice universities do not appear to comply with the obligation to bring these matters to the attention of students. However, they can be invoked effectively as a basis for the university to intervene when the student union engages in political campaigning outside its charitable objects. See Case Study 3.

* If the university owns the premises used by the student union, it should impose conditions on how these are used. See Case Study 4.

The relationship between the student union and university clubs and societies

* The university must ensure the student union has a procedure for allocating resources to clubs which is fair, set down in writing and accessible to all students This may be relevant if you consider that funding or facilities for clubs and societies have not been offered on an even-handed basis. Provided the allocation is fair, student unions can make grants to political or religious clubs or societies on campus, but only if they further the union’s educational purposes. The educational purposes are defined by the student union’s charitable objects. The union must also monitor the activities of the club or society and, if necessary, discipline members or stop funding if they do not further the educational purposes or do not comply with the law. See Case Study 5.

 The Relevant Legal Provisions

For more detail, including relevant legal provisions, please click on each main heading below

Legal obligations of the university

* Duty not to discriminate against students or staff (including academic staff). This duty applies to Jewish students and academics, who are protected as members of an ethnic group, irrespective of their religious beliefs. Academic boycotts violate these provisions and are therefore illegal.

* Duty to have regard to the need to eliminate discrimination, harassment and victimization and to foster good relations. This important obligation is known as “The Public Sector Equality Duty” or PSED. Again these requirements apply to Jewish students, who are protected as an ethnic group, irrespective of religious beliefs, as well as potentially in respect of their religious beliefs. See Case Study 6.

* Duty to protect students from harm. This harm may come from offensive speech and may be psychological or physiological. Note that the university prospectus may contain representations regarding the university environment, which can be worth citing in a complaint. See Case Study 7.

* Duty to take reasonably practicable steps to secure freedom of speech within the law. Freedom of speech under this duty applies to students, staff and visiting speakers. Use of premises should not be denied to any individual/body on any ground connected with the beliefs of views of the individual/body or the policy or objectives of the body. See Case Study 8.

In order to help discharge this duty, the university must have a code of practice setting out procedures to be followed in connection with the organization of meetings and other activities on its premises and at its student union (even if this is not on university premises). If the relevant procedures are complied with, the university should ensure the security and freedom of speech of, for example a visiting Israeli or anti-BDS speaker. If a talk is disrupted, the university may well have a legal obligation to take disciplinary action against those responsible. See Case Study 9.

Note that: the university’s duty is to take reasonably practicable steps to secure freedom of speech within the law. That means that there is no duty to allow known hate speakers onto campus, pleading academic freedom or freedom of speech, and that there is a duty to make a risk assessment in those cases as to whether criminal offences are likely to be committed. See Case Study 10.

* Duty of university to have due regard to the need to prevent people from being drawn into terrorism (“Prevent Duty”). Universities should consider carefully whether a speaker is likely to express extremist views that risk drawing people into terrorism or are shared by terrorist groups. If so, the event should not be allowed to proceed unless the university is entirely convinced that this risk can be fully mitigated without cancellation. If an event with such a speaker is allowed to proceed, he should be challenged with opposing views as part of that same event. If the university is in any doubt that the risk cannot be fully mitigated, it should not allow the event to proceed.

* Duty to comply with public procurement rules. Most universities are probably more than 50% funded by the UK government in which case it is illegal for the university to boycott products on the ground that they come from Israel or from a settlement beyond the Green Line or are supplied by a company which is part of a group that operates in Israel or supplies services to the Israeli government or army.

Legal obligations of the student union

* Duty to comply with UK charity law. Student unions are normally charities, which has important legal consequences. It is unlawful for a student union to engage in activities which do not further its charitable objects, i.e. furthering the education of students at that university. In particular, a student union’s income, property, facilities and resources (including the time of its sabbatical officers) must not be used for any other purpose. Note: the charitable objects of a student union are normally limited to the advancement of education of students at the particular university. The standard objects clause does not cover advancement of education at other universities, still less education in other countries. See Case Study 11.

Student unions may organise debates about political issues, provided these are carried out in a way, which advances students’ education in the broad sense at that university. However, student unions must not engage in or support political campaigns, except where these campaigns are themselves for the purpose of advancing education of students at the university (e.g. a campaign to reduce interest charged on student loans). See Case Study 12.

In order to qualify as “educational”, the debate must be fairly conducted, with each side being given a fair opportunity to present the facts and arguments. The student union can announce the result of a vote on a particular issue but, if it gives special prominence to a vote on a particular political issue, this is likely to be an unlawful political campaign. See Case Study 13.

Note: the NUS is not a charity and is not subject to the limitations on individual student unions under charity law. The fact that the NUS carries on some political campaigns that fall outside advancing the education of students does not mean that individual student unions can.

* Duty to comply with public procurement rules. Most student unions are probably more than 50% funded by the UK government in which case it is illegal for the student union to boycott products on the ground that they come from Israel or from a settlement beyond the Green Line or are supplied by a company which is part of a group that operates in Israel or supplies services to the Israeli government or army.

* Duties of Trustees of Student Union. Student unions are required to have trustees, who are legally responsible for ensuring that student union complies with the law, including the requirements of charity law, such as not engaging in political campaigns or other actions outside the charitable object of advancing the education of students at the university.

Relevant criminal law

There are various criminal law offences which may be committed in the course of BDS and other anti-Israel activities. This is not an exhaustive list.

Note: for all criminal offences, it is essential to identify the perpetrator (and if there is a trial, for the prosecution to prove his/her participation in the crime beyond reasonable doubt). Photographic, video or other evidence identifying the perpetrator should be obtained and kept wherever possible.

Public Order Offences. These cover threatening, abusive or insulting words or behaviour or the display of threatening or abusive writing, signs or other material within the hearing or sight of a person likely to be caused harassment, alarm or distress by such words, behaviour or display. It is not necessary to show that any person actually was alarmed or distressed for this offence to be committed, merely that this was likely. See Case Study 14.

Racial and Religious Hatred Offences. These cover threatening, abusive or insulting words or behaviour, and the display, publication or distribution of written material, where this is intended or likely to stir up racial or religious hatred. Racial hatred is hatred against a group of persons defined by reference to colour, race, nationality, citizenship, ethnic or national origins. It is accepted that this covers hatred against Jews. Religious hatred is hatred against a group of persons defined by reference to religious belief or lack of religious belief.

Although it is notoriously difficult to bring a successful prosecution for inciting racial or religious hatred, these provisions may still be invoked as a reason for not allowing an event with a known hate speaker to go ahead, in view of the risk that the speech would not be within the law.

Assault. The offence of assault is committed by intentionally or recklessly causing someone to apprehend immediate use of unlawful violence. There is no need for actual violence to occur. Battery (often referred to as assault) is committed by intentionally or recklessly applying unlawful force to the body of another person. See Case Study 15.

Criminal damage. This offence is committed by intentionally or recklessly destroying or damaging property belonging to another without lawful excuse. See Case Study 16.

Aggravated trespass. The offence of aggravated trespass is committed where a person trespasses on land and does something intended to obstruct or disrupt a lawful activity, or to intimidate and thereby deter persons engaging in it. This offence is normally committed where someone attends an event with the intention of disrupting it and does disrupt it. Such a person is a “trespasser”, even if he/she has a ticket or has reserved a place or is permitted to attend, since the permission is to attend as a member of the audience, not to disrupt it.

Harassment. The criminal offence of harassment is committed where a person pursues a course of conduct which amounts to harassment of another person and which he knows or ought to know amounts to harassment of the other person. Note that there has to be a course of conduct, so a single incident does not constitute harassment.

Electronic communications. Grossly offensive, threatening or false communications made with intent to cause distress or anxiety to the recipient are prohibited.

Terrorism. It is an offence to publish intentionally or recklessly a statement which is likely to be understood by some of those to whom it is published as a direct or indirect encouragement or inducement to carry out, prepare or instigate terrorist acts. This includes statements which glorify terrorism and from which members of the public to which they are published could reasonably be expected to infer that the conduct being glorified is conduct which they should emulate in existing circumstances. See Case Study 17.

Inviting support for a proscribed terrorist organisation is an offence.

Complaints

For more detail, including relevant legal provisions, please click on each main heading below

Complaints about the Student Union

In practice, writing to the Trustees is usually the most effective way of stopping illegal conduct on the part of the student union. In many cases, it will help to write to the Vice Chancellor (or equivalent) as well. The Vice Chancellor or a member of the University administration may then encourage the Trustees (and particularly Trustees appointed by the University) to deal with the matter correctly.

Using the Student Union’s complaints procedure. Student unions normally have formal complaints procedures with details on the student union website. The procedure is supposed to provide for a possibility of review by an independent person nominated by the university. If not, the university is in breach of its legal obligations and a complaint can be made to the university and, if necessary, appealed to the Office of the Independent Adjudicator (OIA).

In practice, student unions commonly prevaricate in the handling of complaints, in the hope that the student(s) who made the complaint will get fed up or graduate before a decision has to be made.

Complaining to the Trustees. Where the student union is acting unlawfully, for example by implementing a BDS resolution, or by not withdrawing clauses in a resolution requiring Union officers or staff to implement BDS, the most effective mode of complaint is usually by writing to the Trustees.

An email address for the Trustees can usually be found on the Union’s website. If not, you can ask the Chief Executive of the student union for the address or send the complaint to the Chief Executive with a request to forward it to the Trustees. Contact details for the Trustees should also be recorded on the Charity Commission website (write the Union’s name in the Charity search box), although they may be out of date.

Complaint to the Charity Commission. If the Trustees do not deal properly with a complaint within a reasonable time, you should make a complaint to the Charity Commission. The Charity Commission has a web form but it is often best to send the Complaint by post to:

Michelle Russell

Director of Investigations, Monitoring and Enforcement

Charity Commission

PO Box 211

Bootle L20 7YX

If you are thinking of contacting the Charity Commission, you should discuss it with someone from UK Lawyers for Israel.

Types of complaint about the student union

* Complaint that student union has acted or is threatening to act in breach of charity law and/or discrimination laws. A complaint of this type is normally best addressed to the Trustees of the student union (see above). Here are some templates on which your letter can be based, but you must adapt them to the circumstances, and it will probably be helpful to discuss the draft with someone from UK Lawyers for Israel:

• Resolution mandating Officers to implement support for BDS
• Resolution mandating Officers to support the BDS campaign
• Debate not conducted in a fair and balanced way, so not “educational” (Please contact UKLFI for a suitable template letter)

It is often effective to send a letter to the Trustees and a separate letter to the Vice Chancellor (or equivalent) as explained above. The letter to the Vice Chancellor can be sent by students or by an organization such as UK Lawyers for Israel or the Union of Jewish Students. Here is a template.

If the Trustees do not deal properly with the complaint within a reasonable time, you should make a complaint to the Charity Commission.

* Complaint that student union procedures have not been complied with, e.g.

• Procedures for submitting motions or calling meetings
• Procedures at meetings/debates
• Rules on campaigning
• Voting procedures

This may overlap with breach of charity law, since unfair procedures may be contrary to the bye-laws of the student union as well as making the debate unfair or unbalanced so not “educational”. However, particularly where the argument that it amounts to a breach of charity law is not so strong, it may be more appropriate to follow the student union’s complaints procedure.

* Complaint about conduct of a university club or society which is part of or funded by the student union. If this amounts to a breach of charity law (e.g. a political donation), it is usually best to complain to the Trustees of the student union (and to the Charity Commission if necessary). If it only involves a breach of bye-laws/rules of the student union, the student union’s complaints procedure may be more appropriate.

Complaints about the University, staff or students

Unless criminal conduct is involved, complaints regarding actions or failures on the part of the University, staff or other students should normally be made in accordance with the applicable complaints procedure, which is usually on the University’s website.

If the type of complaint is not covered by any specified procedure, you should submit the complaint to the Vice-Chancellor or equivalent (i.e. the Head of the University administration).

The complaint should refer to any legal provision that is relied on and any relevant university policy (also usually on the University’s website.

Types of complaint about the university

* Failure of the university to comply with its legal duties by allowing activities on its premises that undermine good relations between different ethnic and religious groups. Note: this is one of the most useful grounds for arguing that the university has a responsibility to intervene in relation to the more vicious BDS campaigns.

* Harassment by another student or students (although this is also a criminal offence and a serious case should be reported to the Police).

* Failure of the university to comply with its obligations in relation to the student union, e.g. not bringing to the attention of all students the restrictions imposed on the student union by charity law - this can be a means of forcing the university to address unlawful activity by the student union, and should normally be coupled with a complaint to the Trustees and not ensuring that complaints are dealt with promptly and effectively, with review by an independent person appointed by the University, and with an effective remedy if upheld.

* Failure of the University to secure Freedom of Speech or failure to comply with its code on Freedom of Speech

* Discrimination by the University or its staff

Appeal to Office of the Independent Adjudicator (OIA) or the Scottish Public Services Ombudsman (SPSO)

You can appeal to the OIA against the rejection of a complaint by a university in England and Wales, after exhausting the university’s own complaints process and receiving a “Completion of Procedures” letter (you may have to ask for this). There is a time limit of 12 months from the date of this letter for submitting the appeal to the OIA.

An appeal to the OIA must be made on its standard form accessible from its website. The OIA considers first whether the appeal is admissible. If so, it will normally ask the university for its response and for all relevant documents, including internal documents (this can be useful). These are then sent to the student for any comments. The procedure often takes some time. The OIA cannot make binding decisions, but its recommendations are normally accepted by the university.

A similar function is performed in relation to Scottish Universities by the SPSO www.spso.org.uk.

Complaints to the Police

Where a suspected crime has been committed, first ask to be directed to:

• University police-liaison officers
• Neighbourhood policing teams
• Campus security teams
• University or student union hate crime reporting centres

and also contact UK Lawyers for Israel for legal advice.

Types of Event

Is your student union or a university club or society planning a BDS event or debate?

Considerations before the event

* Political debates are permitted provided they further the student union’s educational purposes and do not promote a political campaign or unlawful conduct.

* Will the debate or event be fair and balanced?

* Is there likely to be hate speech?

* Is the speaker connected with an extremist organisation?

* Is there likely to be threatening, abusive or insulting speech?

* Is there a risk of disorder at the event?

* Is the speaker likely to express racist views?

* Has an anti-BDS or pro-Israel speaker been invited to the event?

* How has the event been publicised?

* What is the general approach of the student union to pro-Israel or anti-BDS societies or events? Is it fair and even-handed?

At the event

* If possible, try to arrange for the event to be recorded on video and photographed. This is important to provide reliable evidence if a subsequent complaint is to be made.

* Try to ensure that the event is attended by individuals who would be prepared to put themselves forward as witnesses if necessary.

After the event

* Potential criminal offences committed:

+ Was there any violence or other disorder?

+ Was anyone assaulted?

+ Was any property damaged?

* Collate evidence collected – photographs, video recordings

* It is essential to have cooperation from victims and witnesses

* Note that communications (including emails) to and from witnesses will be disclosable if criminal charges are brought so you need to be careful about what you write if you are a witness or writing to a witness

* Complain – to the university, student union, student union Trustees, police

Is your student union proposing to vote on and/or implement a BDS motion or resolution?

Considerations before debate or vote

* Is this a political debate or a motion to implement BDS?

Important to distinguish between:

(a) a genuinely educational student debate about whether BDS should or should not be supported by individuals, which is in principle lawful and acceptable; and

(b) a motion that the union should implement or campaign for BDS, which is unlawful

If it is (b), you can object to it going ahead. Write immediately to the democracy officer (or similar) and trustees of the union, pointing out that it is illegal. (Please contact UKLFI for a suitable template letter)

* What type of boycott motion is being proposed?

+ Academic boycott? This is illegal discrimination

+ Economic boycott? This may well be illegal under public procurement law

* Have the student union’s procedures for submitting motions and convening meetings been followed? If not, you should make a complaint.

At the debate

* Read a prepared script to the attendees at the start of the debate, advising them the implementation of an academic boycott or BDS campaign against Israel is unlawful as it is in breach of the student union's charitable objects. Stress that the motion will be challenged with a formal complaint to the Charity Commission if it is passed and steps are proposed to implement it.

* Have the student union's voting procedures for debates and motions been followed? If not, this should be the subject of a complaint.

After the debate

* How was debate or result of the vote reported? Note if the student union gives special prominence to the outcome of a BDS vote, this is likely to amount to an unlawful political campaign.

* If the resolution is for the union to implement or campaign for BDS, make a complaint to the Trustees of the student union