In brief
- Universities and other long-standing charities are increasingly researching and disclosing how they have financially benefited from slavery, and then considering what "reparative action" can look like within the legal and regulatory framework that applies to them as charities.
- Some reparative measures may be more straightforward to implement. Others –such as asset transfers/repatriation or the repurposing of existing restricted funds – are more complex and often require prior consents from the Charity Commission and/or other regulators.
- As a high-level legal blueprint, trustees of universities and other charitable institutions in England and Wales must be able to show that any reparative measures that they are proposing to implement (i) further their institution’s charitable purposes for the public benefit, (ii) are within their institution’s legal powers to take or are otherwise legally authorised, and (iii) are taken following proper trustee decision-making in line with the Charity Commission's guidance.
- In some cases, trustees may be able to take a proposed reparative measure even if such measure would not further their institution's charitable purposes, or would not be within the institution’s legal powers to take, provided that the trustees can reasonably be regarded as being under a moral obligation to take the relevant measure, and provided (in most cases) that the prior consent of the Charity Commission has been received.
Introduction
UK universities are increasingly examining how they have historically benefited financially from slavery. The findings from their research often prompt an important question: namely, how they can take reparative action for this legacy within the legal and regulatory framework that applies to them as charities.
This article is intended to assist institutions that have decided to pursue such measures in navigating the relevant legal and regulatory framework in England and Wales. Whether and how to pursue reparative measures is itself a matter of debate, and the decision will inevitably engage a range of considerations that go beyond the legal analysis set out here.
What has been done so far?
The University of Glasgow is widely credited as the first major UK university to formally investigate and publicly document how it historically benefited from slavery, and to commit to a defined programme of reparative justice actions in response. In 2018, it published its report "Slavery, Abolition and the University of Glasgow" in which it acknowledged and quantified the significant financial donations which it received historically from people who had derived some, or occasionally much, of their wealth from slavery.
As part of its programme of reparative actions for this legacy, the University of Glasgow has, amongst other things:
- strived to increase the racial diversity of students and staff through scholarship awards;
- established and pledged to raise £20m for a partnership with the University of West Indies, including through the Glasgow-Caribbean Centre for Development Research which facilitates joint work on topics relevant to the Caribbean nations;
- created an interdisciplinary research centre for the study of historical slavery and its legacies; and
- repatriated a specimen of the Jamaican Giant Galliwasp lizard to Jamaica, its native habitat (which, according to the University of Glasgow's own materials, is a species now presumed extinct and thought to have disappeared due to the sugar cane plantation economy, which caused a loss of natural habitat and introduced predators such as rats to the island).
Since then, other major UK universities have followed suit – including for example the University of Bristol with its £10m "Reparative Futures" programme.
Zooming out, these initiatives have some parallels with the work conducted by other UK long-standing charitable institutions in recent years. For example, in 2023, the Church Commissioners published a formal report acknowledging that Queen Anne’s Bounty, a predecessor fund of the Church Commissioners’ endowment, had links with African chattel enslavement. The Church Commissioners have since announced their commitment of £100m to a reparative programme of impact investment "to invest in a better future for all, working with and for communities affected by historic transatlantic slavery".
Although the approaches taken by UK universities and other long-standing charitable institutions on this topic (and the responses thereto) have been wide-ranging, they have all had to be framed within the legal and regulatory framework that applies to these institutions as charities.
In the remainder of this article, we set out a 3-step legal blueprint for trustees of universities and other charitable institutions in England and Wales who are considering addressing their institution's legacy of enslavement.
Step 1: Do the proposed reparative measures further your institution's charitable purposes for the public benefit?
Under charity law, trustees have a legal duty to ensure that everything that their charity does helps (or is intended to help) achieve the charitable purposes for which their charity is set up, and no other purpose.
Purely from a legal perspective, therefore, the first question to tackle is "do the proposed measures further our charitable purposes?".
The charitable purposes of universities commonly include the advancement of education (often framed as education, teaching, and research). On that basis, measures such as archival research, educational scholarships, curriculum development, public lectures/exhibitions, and research partnerships will often be relatively straightforward to justify as being capable of furthering a university's charitable purposes, because they commonly fall within the recognised legal definition of the charitable purpose of advancing education.
Other measures – such as establishing community funds or non-educational scholarships – may be more difficult to justify as being capable of furthering a university's charitable purposes.
If a proposed measure is not capable of furthering a university's charitable purposes, the trustees may still be able to implement it, provided that they can reasonably be regarded as being under a moral obligation to do so, and provided (in most cases) that the prior consent of the Charity Commission has been received.
For completeness, please note that if a university is holding a fund or asset for specific charitable purposes, and the university is considering reparative measures in respect of that particular fund or asset, it will need to consider the specific charitable purposes which apply to that fund or asset (and which may be narrower or different from the university's own charitable purposes).
Step 2: Is there a legal power to take these measures?
The trustees must have the legal power to take the proposed measures. Such powers will depend on the nature of each proposed measure, and are usually set out in the charity's governing document and/or in legislation (e.g., the Charities Act 2011).
For some measures, there may be a clear and unrestricted power available for the trustees to use.
For some others, there may be a power which is restricted in some way, or which may only be exercised with the prior authorisation of a specific regulator. This includes:
- re-purposing an existing fund held for specific charitable purposes – for example, to give it a reparative aim;
- (in some cases) spending down an endowed fund which is otherwise required to be preserved as capital – for example, to award additional scholarships to students impacted by slavery; and
- (in some cases) paying funds or transferring assets where there is no legal power to do so but the trustees could reasonably be regarded as being under a moral obligation to make the payment or transfer – for example, to return cultural property to its country of origin or former owners.
Step 3: Trustee decision-making
Deciding to research, disclose and make reparations for historical institutional links to slavery is a momentous and multi-faceted decision, particularly for long-standing institutions with a high public profile and a diverse group of beneficiaries and supporters.
Thankfully, the Charity Commission's guidance on decision-making for charity trustees (CC27) (which applies to registered charities but also acts as persuasive guide to most universities which are "exempt" charities) provides a helpful reminder of the key principles of good trustee decision-making.
Particularly relevant principles in this context include:
- The need to be sufficiently informed: Given the complex nature of this issue and the potential impact of any decision on the institution's resources and reputation, trustees should ensure that they are sufficiently informed. This often means consulting with communities directly affected by slavery – who should have agency in determining what meaningful reparations look like – and other stakeholders of the institution (e.g., the wider group of students, staff and alumni who may be affected by the relevant decision(s)), as this will help trustees understand different views, assess the impact of the proposed decision, and show that they are open and transparent. Trustees should also ensure that they receive sufficient advice on the proposed decisions, e.g., from professional advisers and other technical advisers (e.g., academics with specific expertise in this area) as appropriate.
- The need to take account of all relevant factors: Trustees should consider, among other things:
- the options available (for example, the different forms that reparative action could take);
- the costs, risks, and benefits of all options, including if the trustees decide to not do anything;
- the impact on beneficiaries and other stakeholders of all options (including, for example, beneficiaries from whom scholarship options may be taken away);
- whether the institution has the funds to carry out the decision and see it through; and
- the impact of all options on the institution's reputation (and therefore its supporter base).
- The need to identify and disregard irrelevant factors: This includes identifying and disregarding the trustees' own personal feelings or prejudices in relation to the matter.
Ultimately, trustees need to ensure that their decision is in the best interests of their institution and that it is within the range of decisions that a reasonable trustee board could make. They are not expected to avoid all risks, but instead should identify and manage them effectively.
What’s next? Collaboration and progression
The Universities Studying Slavery (USS) is an international consortium of over 100 higher education institutions which have committed to "research, acknowledgment, education and atonement regarding their institutional ties to the slave trade, to enslavement on campus or abroad, and to enduring racism in school history and practice". The USS hosts semi-annual public conferences and workshops to discuss strategies, collaborate on research, and share learnings. Many UK universities and colleges have joined the USS since its inception.
To complement the USS' work and further support institutions with designing and implementing their own acknowledgment and reparative programmes, it may also be beneficial to establish jurisdiction-specific working groups (e.g., for universities in England and Wales). This will enable the sharing of local knowledge/experience and the development of "best practice" recommendations that are tailored to the particular local charity law and regulatory framework.
The Education team at Mishcon de Reya
At Mishcon de Reya, our Education team includes charity law experts who support universities and other charitable institutions on addressing their historical links to slavery. If you would like to have an initial conversation with us about how we can support in this area, please get in touch.