Charity Regulation - The New Fundraising Regulator
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Charity Regulation – The New Fundraising Regulator
The regulation of Fundraising by charities is now governed by the Code of Fundraising Practice, designed by the new Fundraising Regulator, who has built on the work of the Institute of Fundraising.
There is a huge legal backdrop to regulation and compliance. The IOF set out all the legal areas on their website namely, Tax efficient giving, data protection, solicitation statements, contracts and agreements, honesty in fundraising, trading and VAT and they have set out guidance for best practice in door to door fundraising and a due diligence checklist for all operators.
New ideas include site management agreements by local authorities which control areas where and when fundraising can take place. There is also an online diary system where bids can be made to operate at certain times/dates.
The new regulator has issued the new rule book on Door to Door Fundraising (July 2016) which followed the Review of Fundraising Regulation by Sir Stuart Etherington who proposed this new regulator. There are the Rules for Fundraisers and the Rules for Operational Staff, relating to wider organisational practices.
Barristers at St Pauls Chambers are experts in advising charities on all matters, from non-contentious advice on charitable trusts, to advising trustees on their duties. We can advise on all matters relating to the Charities Act 2011, which outlines the duties of trustees of charities. Furthermore, our specialist barristers are used to dealing with the legal requirements contained in the Charities Act 2011 that apply to a disposal of charity land, as well as any particular requirements that might be attached to charity land.
Members of chambers are well versed in advising and representing charities that are subject to statutory inquiry by The Charity Commission, and are proficient in advising on compliance with the Charities Act 2011. With this, St Pauls Chambers can offer expert charity legal advice.
The Charity Commission is a regulatory body that focuses on the charity trustees and their conduct. The Commission work to identify and investigate any misconduct or mismanagement in the administration of charities. Misconduct includes any act (or failure to act) that the person committing it knew (or ought to have known) was criminal, unlawful, or improper. Mismanagement includes any act (or failure to act) that may cause charitable resources to be misused or the people who benefit from the charity to be put at risk.
When opening an inquiry into a charity, The Charity Commission will contact the trustees to inform them and to give them an opportunity to respond and discuss the issues. Barristers at St Pauls Chambers are experienced in advising trustees at all stages of inquiry.
Charity Law and the RSPCA
Charity law UK also includes cases brought by the RSPCA and under the Animal Welfare Act 2006. Barristers at St Pauls Chambers are regularly instructed in animal welfare cases, and members of the chambers are instructed to prosecute and defend such cases under charity law. For more information about Animal Welfare laws, see our RSPCA Prosecution page.
The Rule Book
The rule book contains guidance on sanction which includes fines for breach which start at 100 points per breach (each point is £1). If say an organisation had 50 members of staff each committing 50 breaches this would soon rack up. Further, there are multipliers for repeat violations i.e. every 3rd infringement incurs a penalty of double the normal amount.
The Code of Fundraising Practice
- The regulator has also issued the Code of Fundraising Practice. This is a comprehensive ‘bible’ that looks at compliance for every aspect of fundraising. It makes the point that many obligations are legal obligations [marked with an *] and the remainder are (merely) best practice where the regulator treats the issue as a professional standard to be met by fundraising organisations.
The list of legal obligations is immense. It includesThe Gift Aid Rules
The Charities Act 1992
Charites Act 2011
Charities and Trustee Investment ( Scotland) Act 2005
Charites ( Protection and Social Investment) Act 2016Also, see the list in 2.1Data Protection Act 1998
Safeguarding Vulnerable Groups Act 2006
Health & Safety at Work Act 1974
Management of Health & Safety at Work Regulations 1999
Charities Act 2006
Charities and Trustee Investment (Scotland) Act 2005
Licensing Act 2003
Gambling Act 2005
Equality Act 2010
Health and Safety at Work (Northern Ireland) Order 1978
Safeguarding Vulnerable Groups (Northern Ireland) Order 2007
Management of Health and Safety at Work Regulations (Northern Ireland) 2000
Betting, Gaming, Lotteries and Amusements (Northern Ireland) Order 1985
Betting and Lotteries (Northern Ireland) Order 1994
There are literally hundreds of obligations that arise under the new code.
The code is divided into the following sections.
1.0 Key principles and behaviours
2.0 Working with Volunteers
3.0 Working with Children
4.0 Working with Third Parties
5.0 Fundraising Communications and Techniques
6.0 Direct Marketing
7.0 Reciprocal Mailing
8.0 Telephone
9.0 Digital Media
10.0 Trusts
11.0 Major Donors
12.0 Corporate Partnerships
13.0 Raffles and Lotteries
14.0 Fundraising through Payroll Giving
15.0 Events
16.0 Public Collections
17.0 Static Collections
18.0 Legacies
19.0 Payment of Fundraisers
20.0 Handling Donations
Each section contains numerous obligations. For example section 9 Digital Media ( see below Appendix A) contains 42 specific obligations, of which 25 are legal *.
Some of the obligations are easy to demonstrate compliance. Others include recording all transactions undertaken by the charity, for example 9.6.2
a) Organisations using Premium SMS MUST* register with the Phone-Paid Services Authority (PSA) and comply with its Code of Practice unless exempt services (as defined in the PhonePayPlus Code).
b) Organisations MUST* only send marketing messages to individuals¡¦ mobile phones where those individuals have previously notified the organisations that they consent to receiving such communications.
c) Organisations MUST* make the registration process for messaging clear on all forms of relevant documentation including websites and MUST* include procedures for unsubscribing on all marketing messages.
d) Organisations MUST* make the cost of premium rate messages clear to donors and MUST explain to donors how and when they will be billed.
e) Organisations MUST* follow data protection rules and rules set out in the Privacy and Electronic Communications Regulations 2003 when parental/bill payers¡¦ consent is required.
f) Reply by SMS MUST be an option for opting-out and be clear in all communications.
g) Organisations MUST use a simple opt-out message.
h) Users MUST be able to exercise their opt-out choice from any message, free of charge.
i) For competitions and prize draws, organisations MUST provide a clear and simple method of accessing any terms and conditions and MUST publish the identity of the promoter.
This is an exciting new area of regulation which St Pauls Chambers is happy to develop, together with other consultants and solicitors who specialise in this important market sector.
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