The Commission has this week issued regulatory guidance to charities about the EU Referendum. See today’s Briefing for comment on the guidance from BWB Partner Rosamund McCarthy.
At a glance
The Fundraising Preference Service working group has published a paper setting out some of the key proposals developed by the working group.
In the Ilott –v- Mitson legacy case, Blue Cross and two other charities have been granted leave to appeal to the Supreme Court.
The Information Commissioner’s Office has published new encryption guidance.
The final report following the review of the Freedom of Information Act 2000 has been published.
EU Referendum guidance
The main points covered by the Commission in the guidance are:
- Trustees must consider how any activity relating to the EU Referendum fits in with the charity’s purposes. Any involvement must be incidental, ancillary or subordinate to the charity’s purposes.
- Conflicts of interest must be identified and managed. Some specific conflicts may arise in this context. One example is where a charity is used as a vehicle to express the party political views of an individual trustee or staff member. This applies to all forms of communication, including social media. There are also risks around the possible loss of funding and to a charity’s reputation.
- Trustees should keep a written record of their decisions.
- The Commission will take action if it has grounds to suspect that a charity has acted outside its objects and powers or the trustees have failed to comply with their duties and responsibilities.
BWB Partner Rosamund McCarthy comments “We have been calling for the Charity Commission to issue guidance on this issue for several months. It is surprising that the Commission is issuing that guidance only now, when prudent charity trustees may already have decided if and how their charity will engage in the referendum debate. We are concerned that the tone of the guidance could be seen to be at odds with the Commission’s previous suggestion that new guidance was not required as trustees would “instinctively understand” how to strike the right balance. We are also concerned that the guidance is unclear and even contradictory in a number of areas, fails to resolve ambiguities we had previously identified and seems to imply that matters of good practice are legal requirements. We will be writing to the Commission to explain our interpretation in the light of its existing guidance on Speaking Out (‘CC9’). We remain of the view that charities can take part in the referendum debate, where trustees, having assessed the risks, reasonably believe that doing so will advance the purposes of the charity.’
CC public meeting
The text of William Shawcross’s speech at the meeting last week has been published. His speech covered the following:
- A reference to the continued media gaze on charities. The impact has been to knock public trust and confidence in charities.
- Trustees must take heed of the Alert issued by the Commission about charities’ commercial partnerships.
- The new fundraising regulator represents the last chance for charities to regulate their own fundraising practice.
- The Commission has been transforming the way it works; it is one year into a three year process.
- The Commission will be consulting on the concept of asking charities to contribute to their regulator; contributions will only be sought from larger charities. He called for engagement with this consultation; the Commission is expecting some resistance.
Policy Paper – expectations of trustees and charity officers
The Commission has published a short paper on what it expects from trustees and charity officers in its casework. The Commission expects trustees and other charity officers to:
- prepare adequately by reading commission guidance first and have all the information ready;
- provide true, complete and correct information to the Commission;
- respond to the Commission’s requests on time and keep it informed; and
- understand that it’s an offence to knowingly or recklessly provide false or misleading information to the Commission.
Charity Property survey
The Charity Commission is working with the Ethical Property Foundation (EPF) to identify the key issues that are currently affecting charities in England and Wales with regard to the property that they own, lease or rent. For more information, and a link to the survey, see the Commission’s news item.
Inquiry Reports – double defaulter charities
Fundraising preference group consultation
The Fundraising Preference Service working group has published a paper setting out some of the key proposals developed by the working group and inviting comment on the questions that arise, including:
- the type of communications that should come within the scope of the FPS
- the channels to which the FPS should apply
- how the FPS should relate to existing preference services such as the TPS and MPS
- the possibility of allowing individuals to amend their FPS registration
- the application of the FPS to smaller charities
- the use of the FPS as a tool to protect vulnerable people.
Charities and others are invited to submit comments to the working group chair, George Kidd, firstname.lastname@example.org. The working group will hold a series of roundtables and evidence sessions throughout March. Following feedback, the working group will move on to an examination of how the service will be delivered from a practical perspective.
The Institute of Fundraising has issued an initial comment which includes that it “continues to have concerns over a generalised ‘reset’ button”.
Last year saw the Court of Appeal overturn a mother’s legacies to 3 charities in favour of an estranged daughter (Ilott –v- Mitson). The charities have now been granted leave to appeal to the Supreme Court, expected to be heard in 2017.
Last week the Information Commissioner’s Office published new encryption guidance.
The government has published a consultation on data sharing in the public sector, focusing on data held by public sector organisations and how data is accessed and used, including how data sharing can be enabled.
The ICO has published its corporate plan for 2016-2019 which includes:
- the development of new guidance and checklists on EU data protection reforms by the end of the first quarter of 2016/2017
- a privacy seal scheme to accredit good information rights practices is due to be launched by September 2016
- revised codes of practice on privacy notices and on subject access are due to be issued by April 2016
Cabinet Office Minister Rob Wilson gave this speech last week about “The growth of social investment in the UK”.
Big Society Capital has published:
- This research about retail social investment around the world.
- This blog about developing a social impact bond from a Commissioner’s perspective
- The first in a new series of blogs about the “gritty reality of social investment”
New rules on increasing individual accountability in the banking sector
New rules on individual accountability are being introduced following changes set out in the Banking Reform Act 2013, based on the Parliamentary Commission for Banking Standards’ recommendations to improve professional standards and culture within the UK banking industry. The rules apply to:
- building societies
- credit unions
- the largest investment banks that are regulated by the PRA
- branches of foreign banks operating in the UK
The Government has also proposed that Senior Managers in the banking sector should be subject to a‘duty of responsibility’ which means senior managers will be required to take the steps that it is reasonable for a person in that position to take to prevent a regulatory breach from occurring. This replaces the Presumption of Responsibility and is currently being debated in Parliament.
Reform of the legacy Credit unions sourcebook (CREDS)
The Financial Conduct Authority (“FCA”) consulted jointly with the Prudential Regulation Authority (“PRA”) last year to reform some of the rules for credit unions. The PRA proposed to replace CREDS in its entirety, and the FCA proposed keeping the parts of CREDS that relate its statutory responsibilities, and removing rules and guidance that do not specifically relate to our objectives. The changes to the FCA’s rules complement the PRA’s changes, by removing unnecessary duplication and potential inconsistency with PRA rules, and making some improvements to CREDS. The FCA’s provisions will maintain the focus on consumer protection while clarifying the rules that credit unions must follow. Further information can be found here.
Last month, the Department of Education published “Becoming a 16 to 19 academy: advice for sixth-form colleges”.
Health and social care
Further measures to cut red tape include the Department of Health and the Department for Communities and Local Government leading a programme of work to make sure that the multiple interventions made by public bodies that deal with care homes are “targeted, proportionate and co-ordinated”.
Last month, the Department for Environment, Food and Rural Affairs and the Welsh Government published brief guidance for local or other competent authorities (such as regulators or national park authorities) on how to support wild birds by protecting habitats and avoiding pollution.
Freedom of information
On 1 March 2016, the Independent Commission published its final report following its review of theFreedom of Information Act 2000 (FOIA) and the government published its response to the review. The Commission makes 21 specific recommendations and the Government’s views on some of the most salient recommendations are set out below:
- “Charging for Freedom of Information requests: The Government agrees with the Commission’s view that it is not appropriate to introduce fees for requests, over and above the existing narrow circumstances in which a requestor can be currently charged for disbursement costs.
- Handling vexatious requests: The government agrees with the recommendation of improved guidance, via a revised Code of Practice, to allow public authorities to use section 14(1) in the rare cases where it is necessary and appropriate.
- Greater transparency on pay and perks of senior staff: The government will consider what additional steps should be taken to address any gaps in published information, and in particular in relation to expenses and benefits in kind as recommended.”
See here for comment from the Information Commissioner welcoming the report.
A complaint about factual claims made in a Church of Scientology TV advertisement has been partially upheld.
The Charities Act 2008 (Designated Religious Charities) Order (Northern Ireland) 2016 came into force on 1 March. It disapplies section 86 of the Charities Act (Northern Ireland) 2008 for designated religious charities. (Section 86 is the section which automatically disqualifies certain individuals from being a trustee of a charity, including those convicted of any offence involving dishonesty or deception, adjudged bankrupt and no discharged, or removed as a trustee on the grounds of misconduct or mismanagement).
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Disclaimer - The information contained in this update is not intended to be a comprehensive update - it is our selection of the website announcements made in the week up to last Friday which we think will be of interest to charities and social enterprises. The content is necessarily of a general nature - specific advice should always be sought for specific situations.
Posted on 08/03/2016 in Legal UpdatesBack to Knowledge