Westminster Social Policy Forum Keynote Seminar: Next Steps For Charities, Fundraising, Governance and Social Investment

Timing: Morning, Wednesday, 8th February 2017Venue: Glaziers Hall, 9 Montague Close, London SE1 9DD

Agenda

• Updates on charity law and regulation – implementing the Charities (Protection and Social Investment) Act
• The charity sector in a changing political landscape – public scrutiny, accountability and transparency
• Priorities for the Fundraising Regulator – sector-wide engagement, data and consent, and retaining public confidence
• Social investment within the third sector – making a financial return while furthering charitable objectives
• The future for charity finance and fundraising – partnerships, self-regulation and data protection
• Next steps for charity regulation

Please click here for the full agenda.

Event notes by Paul Ridout, Charity Law Expert

Automatic disqualification rules

Ben Harrison MBE, from the Office of Civil Society at DCMS, gave us an update on the implementation of the new automatic disqualification rules under the Charities (Protection and Social Investment) Act 2016. No definite date at this stage, but it is likely to be in the latter half of 2017, the idea being that charities (particularly those working in the field of offender rehabilitation) will then have time to prepare for the new regime and, if necessary, apply to the Commission for a waiver for any trustee or senior employee with a relevant conviction. Ben mentioned that, to date, around 90% of applications for waivers under the existing framework have been granted. There is still concern among charities represented in the audience that the measures were not appropriate and that the efforts to accommodate the needs of rehabilitation charities had been inadequate.

Conversion to CIO status

Regulations for the conversion to CIO status for charitable companies and community interest companies are now nearly ready to be laid before Parliament, having been the subject of consultation. This mechanism will be available “within months” but, in view of the limited capacity of the Charity Commission to handle the workload, it is going to be phased, with smaller charitable companies being first in line, and larger community interest companies being left until last. Talking to a member of the Working party of the Charity Law Association that had responded to the consultation, I gathered that there was optimism that this would be an extremely helpful measure, particularly if it can simplify or eliminate some of the legal processes (such as TUPE consultation) involved in restructuring but, as with the whole CIO initiative, it was taking rather longer than everyone had hoped.

Lords Select Committee on Charities

The Lords Select Committee on Charities, convened in May last year “to consider issues related to sustaining the charity sector and the challenges of charity governance”, is nearly ready to publish its report. Baroness Barker, who shared the chairing of yesterday’s event with Lord Hodgson of Astley Abbots, said she could tell us what was in the report but that she would have to kill us.

Law Commission’s Report: “Technical Issues in Charity Law”

The Law Commission’s report on “Technical Issues in Charity Law” is likely to be published this Summer with a draft Bill addressing such issues as the regulation of charity land transactions and the treatment of permanent endowment. There may be some doubt as to whether there will be enough Parliamentary time for this to go through in the near future, although Lord Hodgson did point out that there is a separate process for Law Commission bills and he was of the view that it could well be pushed through despite the many other legislative tasks ahead.

Public scrutiny, accountability and transparency in the Charity Sector

We then had a panel discussion about public scrutiny, accountability and transparency in the sector. Perhaps the most compelling contribution here came from Andy Hillier, editor of Third Sector, who queried whether there was really scrutiny from the general public, or whether we were just talking about a narrative that had been developed in certain newspapers, possibly prompted by Conservative MPs who had gone on the attack a few years ago, and further fuelled by comments made by the Chair of the Charity Commission about charities being in crisis. The gist of that narrative had been encapsulated in the comment made in September 2014 by Brooks Newmark (then Minister for Civil Society) that “the important thing charities should be doing is sticking to their knitting” and should keep out of politics. He also pointed out that donations to charities continue to rise.

There was some discussion of the state of play with the process of commissioning public services from the voluntary sector, with a representative from one refugee charity indicating that commissioners were bypassing the local charities that were well placed to help but not sufficiently resourced to complete the tender documentation, and awarding contracts to the private sector. There seemed to be general agreement that steps needed to be taken to protect small and medium-sized charities from being squeezed out of the market; the group charged with implementing the measures announced by Rob Wilson in December was, we were informed, meeting this very day. It was also suggested that the opportunity presented by the Social Value Act 2012 (which allowed public authorities to consider broader social factors as well as financial considerations when assessing tenders) had perhaps been missed.

ICO, the Charity Commission and the Fundraising Regulator, was taking place on 21 February in Manchester. The aim of the event is to help charities and other fundraising groups to comply with the law. The event itself is sold out, but we can watch a live stream at https://ico.org.uk/for-organisations/charity/.

The Fundraising Regulator will be publishing guidance on consent, direct marketing and data protection, including examples of journeys that some charities have taken towards a complete “opt-in” regime in anticipation of the requirements of the General Data Protection Regulation which will come into force in 2018.

Social investment

Fortified by coffee, we then heard from Cliff Prior CBE, Chief Executive of Big Society Capital, about the development of social investment and about the factors that charities would need to consider before deciding to seek inward social investment, including the implications of using this type of finance to develop new services or facilities where beneficiaries might be at risk if there is default. Cliff reported that default rates varied across the sector, with default rates understandably being very low in social housing projects where there was security in the form of property, and higher in early stage/incubator projects where the level of risk was reflected in higher interest rates.

Communicating with supporters

In the second panel discussion of the morning, Dan Fluskey of the Institute of Fundraising usefully reminded us that the “opt-in” approach to communicating with supporters was not a legal requirement, and that communication without express consent is permitted where there is a legitimate interest in sending the communication and the rights of the recipient are not infringed. Nonetheless, some charities were keen to go beyond the legal requirement on the basis that this would have a positive impact and help to improve the sustainability of fundraising practices. It may have an adverse effect on revenue at the outset, but may also improve relationships with donors. In discussion with the audience, it was noted that charities should be wary of being pushed into this process by the media narrative about charities, and that this was a matter that definitely needed to be settled at trustee level.

Sarah Woolnough of Cancer Research UK spoke about her organisation’s journey towards “opt-in”. Since Spring 2016 they had adopted a strict requirement for explicit consent for all new contacts, and they were currently working towards securing consent from all existing supporters by July this year. With some 150 different ways of communicating with supporters, it was proving quite difficult to get consistency of consent across all touchpoints, but they have been looking at how communications with supporters can be designed so as to maximise the chance of obtaining consent.

West London’s charity Law experts

IBB Solicitors’ specialist Charities team has over 50 years’ combined experience in delivering practical commercial advice to charities and not for profit organisations and those who work with them. For advice, please contact our charity solicitors today on 01895 207862 or email charities@ibblaw.co.uk.