Despite a resounding vote in favour, LUSU's referendum to change its Articles of Association – its constitution – has failed to achieve the turnout required for the proposals to be implemented. The referendum achieved a total of 7.5% turnout, marginally more than the 7.3% turnout in the University management confidence referendum that ran concurrently. Under LUSU's existing constitution, a referendum requires 10% turnout to be considered valid.

"Should Lancaster University Students’ Union adopt the proposed new Articles of Association from May 10th?"
Total votes1,239 100
Registered voters and turnout16,6007.5

Why was turnout so low?

The Lancaster University community as a whole is far less connected this year than in previous years, particularly in Lent Term, as many students are still dispersed across the country and internationally due to Covid-19 travel restrictions. Online-only campaigning makes it difficult for campaigners to reach voters outside of the small pre-existing student politics social media bubbles, and has contributed to low turnout for all the LUSU elections and referendums held in the past 12 months.

But LUSU's handling of the referendum didn't help matters. Students voting in the officer elections couldn't cast their referendum votes on the same webpage, but rather had to seek out another link hidden on the LUSU website. This will have, no doubt, suppressed turnout. In addition, the incident where an incorrect version of the Articles was uploaded to the website, so voting on the first day had to be scrubbed and the referendum re-run, will have lost a number of votes which were never re-cast. The incident will have fomented students' concerns about the integrity of LUSU's electoral processes, an issue since last year's by-election controversy. Why bother voting if you're not confident your vote will be counted?

Whilst these issues were apparent from the outset, the 'Yes' campaign appeared slow to realise that reaching the turnout threshold would be an issue, only launching their campaign on social media on 5th March, a day into (the relaunched) voting. This was a clear strategic mistake, especially considering the campaigning period for the referendum had actually opened on 24th February.

In addition, the messaging of the 'Yes' campaign wasn't clear, and at times seemed pretty negative. It came across, on several occasions, like key members of the 'Yes' campaign hadn't actually read and understood the proposed changes they were campaigning for, just adding to the confusion about what the amendments actually entailed. No real effort to communicate the reforms in a detailed positive way was attempted. Instead, patronising gimmicks were resorted to, in order to increase turnout, such as a pledge that the LUSU President, Oliver Robinson, would be publicly egged if turnout reached 15%.

What is remarkable is that in the final days of the referendum, as it was evident turnout was far below the mark required, the full weight of LUSU's reach was unable to garner those last few hundred votes. All LUSU social media was on full blast, the website flashing with appeals to vote for elected external trustees, constant emails and incentives to vote were sent out – even departmental announcements and a post on the Student Portal – and yet the final turnout was just a few dozen more votes than in the Uni management confidence referendum which had no such institutional support.

Fundamentally, the low voter turnout in the Articles referendum reflects a lack of trust in the institution. Or, as a former LUSU Exec vice-chair put it while reflecting on the results, "Once trust is built in the SU, everything else will become a lot easier." How a Students' Union with the second-lowest score in the National Student Survey can do anything but blame itself for low voter turnout in a crucial referendum is a mystery to us.

What happens next?

Spineless has contracted a team of expensive consultants to identify the five most probable paths for LUSU's constitutional reform now the referendum has failed:

1. Do nothing

For the pessimists among Spineless' readership, this seems like the most likely path. Indeed, it is entirely possible that, having fallen at the turnout hurdle, the sabbatical officers will resign themselves to the notion that for the rest of their terms, and probably for the next year, constitutional reform is an impossibility and shouldn't be attempted again.

2. Change the bye-laws but not the Articles

Amending the Articles of Association is important to create a truly democratic Students' Union, but there is so much that can be done within the framework of the current Articles, with a little compromise, flexibility, and artistic flair. For instance, the current Articles state that student trustees are put into office by an Appointments Committee rather than a cross-campus election. This seems like a problem, until you realise that nothing explicitly states how the Appointments Committee is made up. Why not make every student a member of the Appointments Committee? In addition, Union Council does not need to be in the Articles in order to exist and have powers. Why not just establish Union Council with a bye-law, and have the Trustee Board by resolution devolve some powers to it? Or the trustees could decide to massively expand the size of the Executive Committee, turning it into a de facto Council. And while membership of the Trustee Board itself is tightly regulated, membership of Trustee Board sub-committees isn't. Why not elect students to sit on these? Last we checked, the current make-up of the Trustee Board is five sabbs, three students, and two external trustees. So what exactly is stopping them from just getting on with it?

3. Hold a second vote

A plausible next step would be for LUSU to ask students to vote again. The current Articles of Association state that constitutional reform needs to be passed by a 2/3 majority either in a referendum or a general meeting. While a referendum has a 10% turnout requirement in order to be valid, a general meeting only requires 3% of members (about 500) to vote and 150 members in attendance. In a general meeting, students can vote by proxy without having to attend. Of course, putting on a general meeting isn't simple, but since LUSU hasn't yet run its Annual General Meeting this academic year, it is surely on the agenda soon anyway. A Teams call can hold up to 300 people, while a "Microsoft 365 live event" can have up to 20,000 attendees, so there really is no excuse.

4. Disregard the turnout and make the changes anyway

A dangerous proposition, but one which has been mooted, is taking the high margin in favour back to the Trustee Board and asking them to change the Articles regardless of the fact the turnout hurdle wasn't reached. Such a proposition involves big legal questions, and requires some background information as to why some trustees might attempt this route.

LUSU is what is known as a charitable company, as it is registered both as a charity and as a private company limited by guarantee. In addition, LUSU has two classes of membership: the student membership, and company law members (aka the trustees/company directors). LUSU is, therefore, subject to laws governing both charities and companies. Statutory power for company law members to amend their Articles of Association is given in the Companies Act 2006, s 21(1): "A company may amend its articles by special resolution." A special resolution is only so when it is passed by a majority of 75% or more. In other words, of LUSU's 10 current trustees, 8 or more would have to vote in favour.

However, amending LUSU's constitution is not that simple. Article 7 of LUSU's Articles of Association places additional stages and requirements on the organisation before its constitution can be changed including, vitally, 7.2.4: "Any amendment to the Articles shall require… a resolution passed at a Students Members' meeting or in a Referendum by a two thirds majority vote approving the Proposal..." There was a 2/3 majority in favour of the Articles referendum, however it was not "passed", as Article 15.2 makes clear: "...a resolution may only be passed by Referendum if at least 10% of Student Members cast a vote in the Referendum..."

Knowing this, if the trustees vote to change the constitution in a way that is ultra vires, i.e. beyond their own powers, it will be a breach of their fiduciary duties. Historically laid out in common law, the duties are also put into statute in the Companies Act 2006, s 171: "A director of a company must act in accordance with the company's constitution, and only exercise powers for the purposes for which they are conferred." Violating this duty could have a number of consequences for LUSU, an organisation that had to report itself to the Charity Commission only last year for its suspect activity at the Trustee Board level.

5. Appeal to the Charity Commission

Another option in LUSU's arsenal is to appeal to the Charity Commission, which regulates LUSU. Under the Charities Act 2011, s 69(1)(a) the Charity Commission has the power to establish "a scheme for the administration of a charity." This means the Commission can replace a charity's constitution entirely, or amend a certain part of it, if asked nicely.

However, government guidance states that "the Commission won’t make a scheme if you can make the changes yourself (by a power in your governing document or in law)." It's doubtful LUSU will be able to convince the Commission to make the changes on the basis it fell 2.5% short of the turnout required in a referendum. It will be difficult to make the case that 10% turnout is prohibitively high when just last academic year it was well exceeded. Indeed, even if the Commission assents, there is no timescale for the changes to actually take place.

Spineless has found no evidence of the Commission issuing a scheme to change the constitution of any other students' union. However, the Charity Commission has been contacted for comment.

Spineless and the 7.5% of the student population who voted are no doubt waiting with bated breath to hear what the next step for LUSU will be in its constitutional reform programme. Whichever path LUSU decides to take, our expensive consultants have concluded that it will probably be the wrong one.

Featured image by Mr.TinDC, licenced CC BY-ND 2.0.