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Charity Regulation Conference | NCVO

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Slides from the NCVO Charity Regulation Conference, London, 5 February 2018

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Charity Regulation Conference | NCVO

  1. 1. CHARITY REGULATION CONFERENCE 5 FEBRUARY 2018 Media partner:
  2. 2. SHARING INFORMATION FOR DATA PROTECTION: Helen Stephenson CBE, Chief Executive, Charity Commission Stephen Dunmore, Chief Executive, Fundraising Regulator Steve Wood, Deputy Commissioner Policy, Information Commissioner's Office HOW THE REGULATORS ARE WORKING TOGETHER TO PREPARE FOR GDPR
  3. 3. SHARING INFORMATION FOR DATA PROTECTION: Daniel Fluskey, Head of Policy and Research, Institute of Fundraising Gerald Oppenheim, Head of Policy, Fundraising Regulator John Mitchison, Director of Policy and Compliance, Direct Marketing Association WHAT PRACTICAL RESOURCES AND TOOLS ARE AVAILABLE TO PREPARE FOR GDPR?
  4. 4. John Mitchison Director of Policy and Compliance john.mitchison@dma.org.uk
  5. 5. Who is the DMA? • Largest marketing community in the UK • Professional body to shape the future of the industry • Over 1,000 corporate members • Agencies • Brands • Suppliers • Over 16,000 marketing and communications professionals • Self-regulating body for 1-to-1 communications DMA Code of Practice
  6. 6. DMA services
  7. 7. Award in GDPR Online, self-study
  8. 8. DMA Guidance - Website • DMA Code • DMA Best Practice Guides • Online content and articles
  9. 9. DMA Guidance – Website - GDPR
  10. 10. DMA Guidance – Events and Webinars
  11. 11. Consultation and lobbying process
  12. 12. DMA GDPR Guidance • GDPR for Marketers: • Essentials 23 Feb • Accountability 23 Feb • Consent and Legitimate Interests March • Profiling March
  13. 13. RECRUITING TRUSTEES AND SENIOR MANAGERS: Chris Stacey, Co-director, Unlock Lucy McLynn, Head of Employment, Bates Wells Braithwaite NEW RULES ON DISQUALIFICATION AND IMPLICATIONS FOR CHARITIES
  14. 14. Disqualification of trustees and senior managers 5 February 2018 Lucy McLynn, BWB Christopher Stacey, Unlock
  15. 15. What will we cover? - The original rules on disqualification - What changed in 2016? - What’s changing in 2018? - Employment implications - What practical steps should charities, trustees and senior managers be taking?
  16. 16. The current rules – disqualification triggers • Automatic disqualification of charity trustees and trustees for a charity – “Unspent” conviction for an offence involving dishonesty or deception – Undischarged bankrupt (unless leave granted by court) – Undischarged composition or arrangement with creditors – Removed from charity trusteeship by the Commission on grounds of misconduct or mismanagement – Disqualified as company director (unless leave granted by court)
  17. 17. The current rules - waiver • Disqualified person may apply to the Charity Commission for a waiver • Limits on availability • Limited presumption in favour of granting waiver after 5 years • Rarely used
  18. 18. The current rules – acting while disqualified • Criminal offence • Civil implications – Commission may direct repayment of remuneration, expenses or benefit in kind
  19. 19. What changed in 2016? • The Commission can actively disqualify someone from trusteeship if: – one or more of a list of conditions has been satisfied, e.g. involvement in misconduct or mismanagement; and any past or continuing conduct, whether or not in relation to a charity, which is likely to be damaging to public trust and confidence in charities – the person is unfit to be a trustee; and – disqualification is desirable in the public interest in order to protect public trust and confidence in charities. • Also disqualified from acting as a senior manager • Exercised at least four times to date
  20. 20. What’s next? From 1 August 2018 • More people will be automatically disqualified from serving as charity trustees – 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 • Anyone automatically disqualified is also automatically disqualified from acting as a senior manager in a charity Waiver rules changed from 1 February
  21. 21. Charity Commission guidance on the changes • Guidance for charities • Guidance for trustees and senior managers • Guidance on the waiver process and appeals
  22. 22. “Senior Managers” • Chief Executive or equivalent • Chief Finance Officer or equivalent
  23. 23. • A Chief Executive (or equivalent) position will be restricted if it: • •carries overall responsibility for the day day-to-day management and control of the charity • •is accountable only to the charity trustees
  24. 24. A Chief Finance Officer (or equivalent) position will be restricted if it: • is accountable only to the chief executive or the trustees • is responsible for overall management and control of the charity’s finances The responsibilities of this position are likely to include overall responsibility for the charity’s financial: • performance and strategy • policies • controls • compliance with accounting and reporting requirements
  25. 25. Senior positions with financial responsibility are not restricted when: • •they carry budgetary authority, or authority for handling, transacting or accounting for the charity’s money, but • •do not carry responsibility for overall management and control of the charity’s finances
  26. 26. • It is irrelevant if the post is: – Carried out on an interim/temporary basis – Carried out on an part time – Carried out voluntarily – The only post in the charity • What about a post carried out by a “consultant”? • There may be more than one post which amounts to the Chief Executive post • Title is not relevant, it is the reality of the duties of the post(s) that matters
  27. 27. Employment implications • Pre-employment: – When? – Obtain a declaration from the candidate that they are not disqualified – Check that the appointed candidate is not disqualified • Insolvency register • Register of disqualified directors • Register of people removed from trusteeship by the court or Commission – Add to the employment contract that the post holder has an obligation to notify the charity if they become disqualified
  28. 28. • For existing senior managers the same steps should also be taken (send a contractual variation letter) • Periodic re-declarations
  29. 29. Employment implications (cont) • What if an existing post-holder is disqualified under the new rules? – Only a prohibition on holding a senior management post, not on being employed by a charity – Could therefore redeploy the post-holder temporarily (pending a waiver application) or permanently – Affordability? – Suspension?
  30. 30. Unfair dismissal considerations • Relevant for employees with 2 years’ or more service • Where continuing employment will contravene a restriction imposed by a legal enactment there is a fair reason for dismissal under the Employment Rights Act (section 98 (2) (d) ) • A fair process is still necessary, however, which will include – A hearing, with a right to be accompanied by a workplace colleague or Trade Union rep – Alternatives to dismissal being considered (redeployment) – A right of appeal
  31. 31. • An employee who was dismissed on these grounds would (probably) retain their right to notice pay • Amend contracts to specify that notice will not apply in these circumstances? • If the employee had given a false declaration – gross misconduct.
  32. 32. Lucy McLynn Head of Employment Bates Wells Braithwaite 10 Queen Street Place, London EC4R 1BE Tel: 020 7551 7774 Website: www.bwbllp.com Email: l.mclynn@bwbllp.com Twitter: @lucymclynn
  33. 33. ‘Leading charities with conviction’ Christopher Stacey, Co-director @chrisstacey | @unlockcharity
  34. 34. Changes – August 2018 • Implementation of section 9 of the Charities (Social Investment and Protection) Act 2016 on 1st August 2018. • More roles are covered – People disqualified from being a trustee will also be disqualified from ‘certain senior manager positions’ including the roles of Chief Executive and Chief Finance Officer (and their equivalents). • More offences are covered • Certain unspent convictions, including terrorism and money laundering • Anyone on the sex offenders register (even when the conviction is spent) • ‘Advance waivers’ for people affected – from 1st February 2018 • Can still be involved with charities in other paid and volunteer roles, or in advisory positions.
  35. 35. Preparing for August 2018 1. Work out who the new rules cover in your charity 2. Ask those people in roles covered by the new rules whether they’ll be ‘disqualified’ from 1st August 2018 3. Support any individuals ‘disqualified’ to apply for a waiver ‘in advance’ 4. Update your policies and practices for recruiting new trustees and certain senior manager positions
  36. 36. Work out who the new rules cover
  37. 37. Restricted positions • Trustees and certain senior manager positions • Job titles are irrelevant – it’s the responsibilities • Chief Executive (or equivalent) if: • Overall responsibility for day to day management and control • Accountable to trustees • “Management of the charity” position – likely to be only 1 person • Chief Finance Office (or equivalent) if: • Accountable to chief executive or the trustees • Responsible for overall management and control of the charity’s finances • Specific guidance from Charity Commission
  38. 38. Criminal records • Over 11 million people with a criminal record. • Vast majority of people with a criminal record will not be affected by these rules as they won’t cover their specific criminal record • Only certain types of criminal record - Relevant criminal record • There are two elements: • Where there is an unspent conviction (with one exception – for anyone on the sex offenders register), and • Where that unspent conviction is for a certain category of offences.
  39. 39. 1. Unspent convictions only* • If an individual’s conviction is spent under the ROA, the rules don’t disqualify them* • Individuals can check if their convictions are spent by using our online tool: www.disclosurecalculator.org.uk • The vast majority of convictions are spent. There are over 11 million people with a criminal record, but only about three-quarters of a million are unspent • Check if spent @ www.disclosurecalculator.org.uk
  40. 40. 2. Offences covered (* = new) • Dishonesty or deception offence(if dishonesty or deception forms an element of the offence that has to be proved for someone to be convicted of the offence) • Particular terrorism-related offences* • Particular money laundering offences* • Particular bribery offences* • Particular offences under the Charities Act* • Misconduct in public office *, perjury *, perverting the course of justice * • Being on the sex offenders register (even if ‘spent’)*
  41. 41. Examples of dishonesty or deception • Theft • Fraud by false representation • Fraud by failing to disclose information. Many offences can be committed by using dishonesty or deception, but that’s not the same thing. Offences not covered by this definition (and so are not covered by the rules) include: • TV licence evasion • Most motoring offences • Benefit fraud • Assault • Possession of classified drugs
  42. 42. Ask current people whether they’ll be ‘disqualified’ from 1st August 2018
  43. 43. Support any individuals ‘disqualified’ to apply for a waiver ‘in advance’
  44. 44. Supporting a waiver application • Applicant (individual) will ask for info from trustees • They attach the charity’s support to their waiver application • Include things like: • Do majority of the trustees support the application? • Details of the recruitment process • Why applicant is the best appointment • Why they cannot act in an advisory capacity • How you’ve assessed their criminal record • Trustees views on the position and reputation of the charity
  45. 45. Update your policies and practices for future recruitment
  46. 46. Update policies and practices • Avoid blanket declarations about whether an individual is disqualified • Charity Commission guidance: “It is up to your charity to decide when, in its recruitment process, to ask for a declaration from an appointee or candidate about disqualification. It can be done after a preferred candidate has been identified, at the final stage of the recruitment process, and alongside other appropriate pre-appointment checks. The important point is to get the declaration before a relevant appointment is made, so that the charity does not appoint a disqualified person.”
  47. 47. Asking for information from individuals • Instead of “Declare you’re not disqualified” • Move to “Declare if you are disqualified” • We’ve got suggested wording in our guidance • Charity Commission publishing template shortly
  48. 48. Useful links • Guidance for charities – recruit.unlock.org.uk/charities • Guidance for individuals – hub.unlock.org.uk/charity • “Do the charity disqualification rules affect me?” tool – www.unlock.org.uk/charitytool • Disclosure calculator – www.disclosurecalculator.org.uk • We’re running workshops… • Central go-to place – www.unlock.org.uk/charityrules
  49. 49. Any questions? Christopher Stacey | Co-director direct: christopher.stacey@unlock.org.uk | 07557 676433 unlock.org.uk/chris | @chrisstacey web: www.unlock.org.uk & @unlockcharity
  50. 50. CHARITY CAMPAIGNING WITH A MINORITY GOVERNMENT: Kate Engles, Policy Manager, Electoral Commission Denise Bottom, Senior Advisor, Electoral Commission Jessica Metheringham, Parliamentary Engagement, Quakers in Britain REGULATORY ISSUES FOR CHARITIES TO CONSIDER
  51. 51. Non-party campaigning rules Campaigning when there is a minority government February 2018
  52. 52. Format of this presentation • Part One –the Electoral Commission overview • Part Two –a contribution from the Quakers • Part Three-more detail from the Electoral Commission 55
  53. 53. We are an independent body set up by the UK Parliament We regulate party and election finance and set standards for well-run elections. We work to support a healthy democracy, where elections are based on our principles of trust, participation, and no undue influence.
  54. 54. 57 publish data on political funding & spending register campaigners monitor how well the rules are being followed & deal with possible breaches of the rules help campaigners to understand and comply with the rules by providing advice and guidance Our role
  55. 55. A healthy democracy “Political parties and campaigners are vital to a healthy democracy and we encourage active participation by campaigners” Electoral Commission
  56. 56. Regulated spending • Only on certain activities • In the regulated period • If it passes the public and purpose test • To register with us and report spending and donations 59
  57. 57. When do the rules apply? Regulated period for UK Parliamentary general election: • generally 12 months • early elections such as 2017 –it applied in the 12 months prior • If it’s within 12 months from 8 June 2017, it will have commenced on 9 June 2017
  58. 58. Registering with the Electoral Commission You must register if you want to spend more than • £20,000 in England or • £10,000 in any of Scotland, Northern Ireland or Wales during the regulated period on regulated campaign activity.
  59. 59. Registered non-party campaigners • Higher spending limit • Rules on donations and spending • Pre and post poll reporting • Put systems in place now to plan and authorise spending 62
  60. 60. End of Part One 63
  61. 61. THE QUAKERS Part Two 64
  62. 62. Initial decision •Do we need to register? •Who makes the decision to register? •Who is going to do the work?
  63. 63. Collecting the data •The person with responsibility •Staff carrying out the campaigning •Finance and HR
  64. 64. Information about staff •Hours worked per week •Salary (plus NI and pension) •Did they work the entire year? •Have they changed their hours or role?
  65. 65. Individual work breakdown Project work Time Committee secretariat work 20% Organising action against DSEI arms fair 15% Workshops with Quakers 30% Blog posts 10% Trident campaign 25%
  66. 66. Individual work breakdown Project work Time Public Purpose Committee secretariat work 20% 0% 0% Organising action against DSEI arms fair 15% 80% 50% Workshops with Quakers 30% 0% 0% Blog posts 10% 100% 40% Trident campaign 25% 60% 80%
  67. 67. Individual work breakdown Project work Time Public Purpose Committee secretariat work 20% 0% 0% Organising action against DSEI arms fair 15% 80% 50% Workshops with Quakers 30% 0% 0% Blog posts 10% 100% 40% Trident campaign 25% 60% 80%
  68. 68. Individual work breakdown Project work Time Public Purpose Organising action against DSEI arms fair 15% 80% 50% Blog posts 10% 100% 40% Trident campaign 25% 60% 80%
  69. 69. Individual work breakdown Project work Time Public Purpose Organising action against DSEI arms fair 15% 80% 50% 12% 7.5% Blog posts 10% 100% 40% 10% 4% Trident campaign 25% 60% 80% 15% 20%
  70. 70. Individual work breakdown Project work Time Public Purpose Organising action against DSEI arms fair 15% 80% 50% = public rallies and events 12% 7.5% Blog posts 10% 100% 40% = election material 10% 4% Trident campaign 25% 60% 80% = election material 15% 20%
  71. 71. Individual work breakdown Hours worked per week 35 Days worked in this period 91 % of time spent on project/s 50% Total cost of staff time £6,762 Project work Public Purpose Cost Election material 25% 24% £406 Public rallies and events 12% 7.5% £61
  72. 72. Format of information Staff Total regulated spend Jessica Metheringham £1,645.76 Election material £1,645.76 Canvassing or Market Research £0 Press Conferences and Media Events £0 Transport £0 Public Rallies and Events £0 Staff and Overheads £0
  73. 73. Examples of projects •Campaigning against nuclear weapons • Long running • Relevant in many Scottish constituencies •Election guide/manifesto • 28 pages • 21 topics • 15 staff
  74. 74. Controversial social security cuts such as the household benefit cap and the spare room subsidy (known as the ‘bedroom tax’), combined with new assessment and sanctions processes, are causing unacceptable hardship within our communities.
  75. 75. The Quaker commitment to community means we have a responsibility to respect and care for all. Yet, benefit delays, sanctions and cuts drove hundreds of thousands of people to food banks last year.
  76. 76. The cuts have often been justified by a divisive public discourse that disparages claimants, falsely implies that fraud is widespread and fails to recognise that a large proportion of benefit claimants are actually in paid work.
  77. 77. Challenges •Deciding how much of a project falls under the tests •The amount of work required • Online system • Fitting into the categories •The retrospective aspect
  78. 78. THE ELECTORAL COMMISSION Part 3 86
  79. 79. I am going to cover • What is regulated activity • The public and purpose test • What it does and doesn’t cover 87
  80. 80. Regulated campaign activity • Election material • Public events and rallies • Press conferences or other media events • Canvassing or market research seeking views or information from the public • Transport to obtain publicity
  81. 81. Public and purpose tests • public nature of activity, and • the activity can reasonably be regarded as intended to influence voters to vote for or against: • political party/ies or candidates that support or do not support particular policies or issues or categories of candidate
  82. 82. Public and purpose tests • The purpose test • Its objective
  83. 83. Public and purpose tests Generally, an item will be campaign material if it: • identifies candidates or parties who support or oppose your campaign’s aims • sets out or compares the positions of particular parties or candidates on a policy that you are promoting • promotes or opposes policies which are so closely and publicly associated with a party or parties that it is not reasonable to argue that the item isn’t campaign material
  84. 84. Purpose test Takes into account factors such as: • tone • context and timing • call to action • how a reasonable person would see the activity
  85. 85. Purpose test • Tone Is tone positive or negative towards particular party/ies / category of candidates /policies? • Context and timing Is issue prominent in public debate? Does it represent an area of difference between parties? How close to the election are you campaigning?
  86. 86. Purpose test • Call to action Is your campaign (explicitly or implicitly) asking people to vote for a particular party/ies or categories of candidate at an upcoming election?
  87. 87. Purpose test • How a reasonable person would see your activity? Would they regard your campaign as intended to influence people’s voting choices?
  88. 88. Public • Members and committed supporters are not members of the public • People that your organisation regularly communicates with are members of the public unless they are also your members or committed supporters • Generally, all material published on social media as part of a campaign will meet the public test. 96
  89. 89. Committed Supporters • People who support your organisation in the same way as members. • Exact nature will vary between organisations but they could include: – regular donors by direct debit – people with an annual subscription – people who are actively involved in your organisation • Make an honest and reasonable assessment. 97
  90. 90. Registered non-party campaigners • Higher spending limit • Rules on donations and spending • Pre and post poll reporting • Put systems in place now to plan and authorise spending • Rules on joint spending • Spending limits on targeted spending in support of a particular political party • Spending limits within one particular constituency 98
  91. 91. Hustings • A hustings is a meeting where election candidates or parties debate policies and answer questions from the audience. • Two types of hustings • Selective and non selective • Expert guidance on hustings 99
  92. 92. Going Forward • Modern guidance project • Updating PFR on line system 100
  93. 93. Advice – we’re here to help England: 0333 103 1928 pef@electoralcommission.org.uk • Scotland: 0333 103 1928 infoscotland@electoralcommission.org.uk • Wales: 0333 103 1929 infowales@electoralcommission.org.uk • Northern Ireland: 0333 103 1928 infonorthernireland@electoralcommission.org.uk
  94. 94. CHARITY CAMPAIGNING WITH A MINORITY GOVERNMENT: Kate Engles, Policy Manager, Electoral Commission Denise Bottom, Senior Advisor, Electoral Commission Jessica Metheringham, Parliamentary Engagement, Quakers in Britain REGULATORY ISSUES FOR CHARITIES TO CONSIDER
  95. 95. NCVO champions the voluntary sector and volunteer movement to create a better society. We connect, represent and support over 13,000 voluntary sector member organisations, from the smallest community groups to the largest charities. This helps our members and their millions of volunteers make the biggest difference to the causes they believe in. • Search for NCVO membership • Visit www.ncvo.org.uk/join • Email membership@ncvo.org.uk 103

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