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The legal and regulatory landscape an update

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Session slides from Trustees' Conference 2018

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The legal and regulatory landscape an update

  1. 1. THE LEGAL AND REGULATORY LANDSCAPE: AN UPDATE SPEAKERS ALICE FAURE WALKER EMMA KNUCKEY LUCAS ATKIN Drinks sponsors: Lead sponsor: Co sponsor: Media partner: Digital partner:
  2. 2. Overview • Developments at the Charity Commission, including safeguarding and serious incident reporting • Charity Commission inquiry reports and Charity Tribunal cases • Data protection update for charity trustees • Latest developments in fundraising • New regime for automatic disqualification of trustees and senior managers • New rules on conversion of charitable companies to CIOs
  3. 3. CHARITY COMMISSION UPDATE Drinks sponsors: Lead sponsor: Co sponsor: Media partner: Digital partner:
  4. 4. Charity Commission – regulatory themes • New strategy for 2018-2023 • Safeguarding • Serious Incident Reporting • Transparency (via new Annual Return) • Use of (new) regulatory powers
  5. 5. Charity Commission – new strategy • “…to ensure charity can thrive and inspire trust so that people can improve lives and strengthen society.”
  6. 6. Charity Commission – safeguarding • Broader definition than “protecting children and vulnerable adults” • Link with serious incident reporting regime • Influence of Central Government policy
  7. 7. Serious Incident Reporting • Updated guidance October 2018 • Reflects safeguarding focus • Intended to make reporting clearer (not reflecting policy changes) • New examples provided • SIR Checklist and new digital tool have been promised to make reporting easier
  8. 8. Charities connected with non- charities • Consultation between February and March 2018 • Final (redrafted) guidance due later this year • Applies to: charities with trading subsidiaries, charities in international federations, corporate foundations, etc.
  9. 9. Transparency • New Annual Return questions: – Income from outside the UK – Overseas expenditure – Salaries and benefits • Accounts Monitoring Review • “Double defaulters”
  10. 10. Regulatory action • Inquiry/regulatory case reports this year • Use of newer powers – Official Warnings – Winding up a charity on the grounds it is expedient in the public interest
  11. 11. Charity Commission – looking ahead • Implementation of new strategy • Consultation on charging for regulation • Final charities/non-charities guidance • Complementary/alternative consultation outcome • More on safeguarding and serious incident reporting?
  12. 12. Drinks sponsors: Lead sponsor: Co sponsor: Media partner: Digital partner: CHARITY TRIBUNAL UPDATE
  13. 13. Charity Tribunal update • 10 year anniversary of charity tribunal • Less than 10 cases this year • Awaiting two Upper Tribunal decisions
  14. 14. Tribunal cases • Vanessa Hill v Charity Commission (CA/2018/0002) – Charities with similar names • Graham Hipkiss v Charity Commission (CA/2017/0014) – Removal from the Register of Charities
  15. 15. Drinks sponsors: Lead sponsor: Co sponsor: Media partner: Digital partner: DATA PROTECTION UPDATE
  16. 16. Meet your host
  17. 17. Social media: dangerous?
  18. 18. New e-privacy regulation • Draft applies to ‘electronic communication networks’ – includes social media? • Not expected to be in force until 2020 • Ensure monitoring of developments of this legislation
  19. 19. Punishments: trends to date
  20. 20. ICO fines • Facebook • The British and Foreign Bible Society • Equifax • Royal Free Hospital
  21. 21. Equifax v Royal Free Hospital • ICO enforcement action – Equifax fined • Difference between the breaches
  22. 22. Equifax v Royal Free Hospital (2) ICO sympathy for RFH activities? “There’s no doubt the huge potential that creative use of data could have on patient care and clinical improvements, but the price of innovation does not need to be the erosion of fundamental privacy rights.” Elizabeth Denham, Information Commissioner
  23. 23. Keep calm – points to note • Active vs passive breaches • What are you trying to achieve? • Accountability • Organisational compliance
  24. 24. Data storage
  25. 25. Retention and archiving • Data minimisation • Is archiving an option?
  26. 26. International transfers
  27. 27. US Privacy Shield • Current status • Should you check your US suppliers?
  28. 28. Other transfers • Sector codes as an alternate to model clauses/adequacy/privacy shield? • BWB roundtable with ICO, NCVO, Institute of Fundraising, and the Charity Commission re charity sector code
  29. 29. Right of subject access
  30. 30. The danger of SARs • Increased awareness – rise in SARs since GDPR? • Fishing expeditions • Exemptions • Schedule 2 DPA 2018 – restriction to prevent harm to third parties
  31. 31. Thoughts/Comments/ Questions?
  32. 32. Drinks sponsors: Lead sponsor: Co sponsor: Media partner: Digital partner: FUNDRAISING UPDATE
  33. 33. Fundraising Regulator
  34. 34. Fundraising Regulator • Registration – over 3,000 organisations registered • Fundraising Preference Service – around 17,000 suppression requests • Code of Fundraising Practice – changes: telephone fundraising; online fundraising platforms; handling complaints; data protection – consultation on an overhaul of the Code focussing on style, presentation and accessibility closes 16 November 2018
  35. 35. Live issues in fundraising • Presidents Club Charitable Trust – Failure to monitor third party activities – Acceptance, refusal and return of donations: • Charity Commission advice • Institute of Fundraising guidance • Complaints policies • Fundraising statements in the annual report – Fundraising Regulator and Charity Commission guidance
  36. 36. Other developments in fundraising • Gift Aid – Changes to the donor benefit rules • Lotteries – Proposed changes to the society lottery limits • Challenge events – Changes to the Package Travel and ATOL Regulations
  37. 37. Drinks sponsors: Lead sponsor: Co sponsor: Media partner: Digital partner: OTHER LEGAL AND REGULATORY NEWS
  38. 38. Automatic disqualification of trustees The circumstances triggering automatic disqualification from trusteeship now include: • Conviction for offences involving: – Terrorism, money laundering, bribery – Misconduct in public office, perjury, perverting the course of justice • Contempt of court, disobedience to Charity Commission order • Designated person under terrorism legislation • Sex offenders register
  39. 39. Automatic disqualification of senior managers Anyone automatically disqualified is also automatically disqualified from acting as a senior manager in a charity
  40. 40. Action to take • Are existing trustees affected? • Who are your senior managers? Are they affected? • Waivers? • Build new circumstances into recruitment procedures
  41. 41. Charitable company to CIO conversions • Proposed CIO constitution • Two members’ resolutions – One to convert – One to adopt the constitution • Application to the Charity Commission • Third party relationships?
  42. 42. Other news • Children’s Investment Fund Foundation – Trustee benefit – Members owed fiduciary duties • Charity secretarial – Renewed focus on enforcement of PSC rules – Possible registration scheme for charitable trusts • Trading subsidiaries – Accounting issues
  43. 43. Other news • Budget 2018 – Small scale trading limit to increase • To £8,000 where turnover under £32,000 • 25% of turnover between £32,000 and £320,000 • To £80,000 where turnover over £320,000 – GASDS individual donation limit increased to £30 – Retail Gift Aid Scheme – See www.charitytaxgroup.org.uk • Brexit – See also www.brexitcivilsocietyalliance.org • Law Commission – technical issues in charity law
  44. 44. Contact details Alice Faure Walker a.faurewalker@bwbllp.com Emma Knuckey e.knuckey@bwbllp.com Lucas Atkin l.atkin@bwbllp.com Bates Wells Braithwaite 10 Queen Street Place London EC4R 1BE Tel: 020 7551 7777 www.bwbllp.com

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