Guide to the Guild Constitution

This serves as a brief guide to interpreting and applying the Constitution of the University of Exeter Students’ Guild.

This serves as a brief guide to interpreting and applying the Constitution of the University of Exeter Students’ Guild.

Introduction

The Students’ Guild is regulated primarily by the Education Act 1994 ss.20-22, with s.22 setting out the absolute requirements that all registered Students’ Unions are required to perform by law.

This guide is not the Constitution, but serves to bring together the constitutional documents and principles in one place in order to provide transparent governance for our student members.

Education Act 1994 s.22

Section 22 sets out the following requirements, which through interpretation by the independent adjudicator for Higher Education (OIA) over the course of several years, carries the following effect:

The interpretation of s.22 has established that Universities as governing body as named in the Education Act 1994 have an absolute legal obligation to ensure that Students’ Unions carry out the following points;

  • The Guild must operate in a fair and democratic manner, and be accountable for its finances.
  • The Guild must have a written Constitution.
  • All students have the right to opt-out of membership; and to do so without being unfairly disadvantaged with regard to the provision of services or otherwise for doing so.
  • Appointment to major Guild offices must be by an election in a secret ballot in which all members are entitled to vote.
  • No-one can hold Sabbatical office or paid elected office for more than two years in total.
  • The financial affairs of the Guild should be properly conducted, transparent and list donations and affiliations.
  • Any method of allocating funds to clubs and societies should be fair and set down in writing and accessible to all students.
  • Students must be able to propose disaffiliation from any external organisation in a secret ballot where quoracy is set at no more than 5% of the current membership.
  • Complaints must be dealt with promptly and fairly and where upheld should have an effective remedy.

The Constitution of the Guild consists of several documents:

  • The memorandum and articles of incorporation – required by Company Law and governing the legal corporate requirements of the Guild as a Charity and company limited by guarantee.
  • The Guild Bylaws – split across Legal Compliance, Operational Policy and Democratic Policy
  • The Officers’ Code of Conduct – which regulates the behaviour of elected representatives and all student volunteers

There are additional documents are processes and procedures which add descriptions of services or regulate behaviour in varying contexts (such as Election Rules.)

The Guild operates a ‘digital first’ policy with most democratic material – policy can be found online here.

The student government of the Guild is Guild Council – and the memberships, roles and duties of Guild Council are set out at They Represent You.

On top of the stated methods of interpreting law (the Legal Compliance bylaw) the Guild is subject to the Ordinances and Regulations of the University of Exeter, and to the laws of England & Wales.

This includes (but is not limited to)

  • Charity Law – regulated by the Charities Commission
  • Company Law – regulated by law under Companies House
  • Taxation and VAT regulations – regulated by HMRC
  • Equality Act 2010 – regulated by law, with guidance and direction from the EHRC

Whilst Students’ Unions do not fall within the remit of the Electoral Commission, we follow their guidelines and advice when appropriate to achieve elections and democratic results with the highest standards of integrity.

Whilst the Guild is not a public body for the purposes of Human Rights regulation (the Human Rights Act) we adopt the standards of human rights case law as determined in the courts of England and Wales, following the determined case law from the European Court of Human Rights.

In keeping with those principles, the main articles which affect the way that the Guild interacts with its' own membership (students) are those relating to:

  • The respect for all rights, taking all human rights into account without limitation or priority within the context of a democratic society.
  • Liberty and security within the context of transparent rules and fair procedures.
  • The right to a private life and individual privacy.
  • Freedom of conscience and faith.
  • Freedom of expression within the limits of law.
  • Freedom of association as a requirement for a democratic society.
  • Notwithstanding any specific rule or regulation; not to discriminate on any grounds in the provision of a service or goods to our members.

Other principles involved in interpretation and guidance come from best practice in company terms, volunteer support codes of best practice and the concepts of Natural Justice.

The powers of judicial governance

The Guild President as Chair of Trustee Board is the effective guardian of student rights against a legislative framework – it will be the President who instructs (at the collective instruction of Trustee Board) any legal opinion required to resolve an issue, and this must be done through the commission of a Barrister qualified to give such advice.

  • There will be a Vice Chair of Trustee Board, elected by Trustee Board from amongst the external Trustees.

The Guild President is thus the only elected officer whose role incorporates elements of all three branches of student government, in similar fashion to the Lord Chancellor pre-2005 – although in a more limited sense.

Democracy and Governance Council may issue new rules or alter existing ones; subject to the agreement of the DVP Democracy and Governance who must justify changes to Shadow Council.

The whole Guild Sabbatical Officer team controls the issuance of parts of the Officer’s Code of Conduct – and any duty arising from issuance of rules and interpretation of them also falls under the rules governing natural justice. The Sabbatical Officers are therefore collectively an Executive Legislature with judicial powers to interpret the code they jointly issue. Decisions made under this code should therefore be subject to strict scrutiny.

Shadow Council in its’ entirety has the authority of a limited Supreme Court – it can interpret any part of the Constitution (except Rules with an individual officer;) and act as a body of Judicial Review in sending decisions back to decision-makers with a new set of guidelines to follow to reach a new decision in the light of Shadow Councils’ determination.

In practical situations where fast decisions are required, then during Student Elections appeal verdicts (whether to grant an appeal and return a decision to the Student Elections Officer) is made by the Change Manager since ‘promptly’ in those cases is within an hour, and it is impossible to convene a meeting on that amount of notice.

In order to work effectively, all judicial officers must oblige at the minimum the interpreted values of natural justice when making decisions.

The term natural justice is coexistent and equivalent to a duty to act fairly, and is also complementary of the European Convention on Human Rights Article 6(1). Any source from the common law of England & Wales or Article 6(1) jurisprudence may be used as a guide, where facts match a complaint or case involving students.

‘Fair’ includes the following elements:

  • There must be no penalty made by a decision which affects a right or legitimate expectation without prior notice of a decision being made.
  • There must be a fair opportunity given to answer any case.
  • Any student must have a fair opportunity to present their own case, including the cross-examination of any witnesses.

Bias:

  • A person is barred from deciding a case in which they may be, or may appear to be, biased.
    • Possibility, not probability of bias – as in the House of Lords decision – the point is to look at the decision through the eyes of an ordinary student, and determine if there is a real danger that they would see bias in the proceedings.
    • The ordinary student may be framed by relevant characteristics shared by any student objecting to a decision.
  • Shadow Council has the duty to act judicially when it makes decisions that affect people’s rights or interests.
  • Where a Shadow Councillor has a personal interest, personal connection or implicit bias in a case they must recuse themselves from any proceedings. Failure to do so will render any verdict voidable.
  • Only necessity may stay a finding of bias – if there is only one elected student to make a decision, then of necessity they must still be the one to make that decision, although strict scrutiny of that decision by Shadow Council will take place at the request of Shadow Council or the Guild Chair.

Fair Hearing:

The elements of a fair hearing are already detailed within the Education Act 1994, s.22 2(n)

Any process or procedure must be:

  • dealt with promptly,
  • dealt with fairly,
  • And where a complaint is upheld there should be an effective remedy.

Promptly

The normal complaints processes and disciplinary methods have timings attached which make it clear that each stage of any process must take place within one month, or two weeks.

Delays caused by disengagement from a process by any student involved will not be taken as ‘stopping the clock’ on proceedings unless a student has asked for and been granted a stay. A stay cannot be granted after a period of time has expired unless a decision-maker has failed to provide exact details of timing.

Effective Remedy

Judicial Review with its’ power to interpret a rule and ask the decision-maker to rule again in light of that interpretation stands as an effective remedy in its’ own sphere in administrative law – provided that all elements of fairness in a judicial sense can be seen as having been reached or exceeded in any decision then there has been an effective remedy.

The Guild cannot imprison or fine students – thus recission proceedings or decisions will not normally be required as a part of judicial review. A decision being reached using these principles stands to put all parties in the position they were in before a decision was taken, and is therefore sufficient.

Strict Scrutiny

Does not exist in the common law of England & Wales, but has elements which overlap with proportionality from the ECHR jurisprudence on Articles 5 and 6.

Strict Scrutiny is a US construction which is used to weigh the government’s interest in issuing a ruling which violates a constitutional right or principle.

Any rule issued must pass three tests:

  • It must be justified by a compelling interest.
    • Necessary or crucial
    • Preserving against harm, and not violating explicit constitutional protections
  • It must be narrowly tailored to achieve the aim.
    • It cannot be overbroad.
    • It must not fail to meet the aim.
  • It must be the least restrictive means for achieving the aim.
    • This is proportionality as used in European jurisdictions (particularly the German Supreme Court.)
    • If there is a less restrictive means of achieving the same aim then it should be used instead.

The burden of proof for passing all three tests falls on the person(s) issuing a Rule, and not on anyone objecting to it.

In order to apply strict scrutiny, it should be necessary, or named – there are two instances of named application in these guidelines.

  • Scrutiny of the Sabbatical Officers’ interpretation of the Officers’ Code of Conduct.
  • Scrutiny of the active decisions of single judicial officers where necessity has been used to over-rule a determination of bias.

For decisions outside the listed points, the suspect classification of US law is not required since UK law contains the Equality Act 2010, to which the Guild is bound in the provisions of services.

Strict Scrutiny therefore becomes a necessity in cases engaging a protected characteristic under the Equality Act 2010. These are:

  • Age
  • Disability
  • Gender Reassignment
    • Relates entirely to surgical reassignment, not to being trans
    • Has been interpreted using the Gender Recognition Act ‘2 year’ rule
  • Marriage and Civil Partnership
  • Pregnancy and Maternity
  • Race
  • Religion or belief
  • Sex
  • Sexual Orientation

In particular, the characteristics listed are protected for students and Guild staff on the basis that:-

  • There must be no direct discrimination on the grounds of a protected characteristic:
    • Disabled persons can be treated more fairly than non-disabled persons
    • There is a particular duty to make reasonable adjustments for persons with disabilities
    • Segregation on the grounds of race or sex is direct discrimination
  • There must be no indirect discrimination on these grounds:
    • Putting a person with a protected characteristic at particular disadvantage when compared to those who do not share the characteristic
    • Doing so is not a proportionate means of reaching a legitimate aim (it would fail strict scrutiny)
  • There must be no harassment on these grounds:
    • Violating someone’s dignity
    • Creating an intimidating, hostile, degrading, humiliating or offensive environment for someone
  • There must be no victimisation of someone complaining on these grounds:
    • For complaining, using a protected characteristic as the basis of the claim
    • For giving evidence in connection with this guide or on the basis of a claim
    • For publicising or promoting this guide or the basis of a claim
    • Making an allegation that these guidelines have been violated, except only where a false allegation has been made and proven by a court of law in a case determining the application of the Equality Act itself.

Other relevant factors on Strict Scrutiny

  • It is irrelevant if the person issuing a rule carries the same protected characteristic as the person complaining.
  • Self-segregation into collective groups for campaigning or other active engagements which are unrelated to the formation of a permanently affiliated organisation (society or other ‘eternal duration’ group) is not discriminatory.
  • The use of payment to cover anything except costs voids this interpretation; therefore no Society may form on the grounds of an exclusionary membership based on a protected characteristic.

Shadow Council is free to go beyond the law in creating new terms for strict scrutiny in extending protection – therefore it is possible and permissible to use strict scrutiny where impacts could be felt on the grounds of:

  • Degree level – to protect PGT and PGR student interests
  • Fee status – to protect International Student interests
  • Trans identities – to protect non-binary and non-surgically transitioned students

Such cases as are determined will be added to these guidelines – new remedies or rights must be determined using the Charitable Objects of the Guild only.


University of Exeter Students' Guild is a Charity and Company Limited by Guarantee. Registered Charity Number: 1136468 Company Number: 07217324; registered in England and Wales Registered office: Devonshire House, Stocker Road, Exeter, EX4 4PZ