Charity Regulation Conference | NCVO

CHARITY REGULATION
CONFERENCE
5 FEBRUARY 2018
Media partner:

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

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?

John Mitchison
Director of Policy and Compliance
john.mitchison@dma.org.uk

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

Award in GDPR
Online, self-study

DMA Guidance - Website
• DMA Code
• DMA Best Practice Guides
• Online content and articles

DMA Guidance – Website - GDPR

DMA Guidance – Events and Webinars

Consultation and lobbying process

DMA GDPR Guidance
• GDPR for Marketers:
• Essentials 23 Feb
• Accountability 23 Feb
• Consent and Legitimate Interests March
• Profiling March

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

Disqualification of
trustees and senior
managers
5 February 2018
Lucy McLynn, BWB
Christopher Stacey, Unlock

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?

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)

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

The current rules – acting while disqualified
• Criminal offence
• Civil implications
– Commission may direct repayment of remuneration, expenses or benefit
in kind

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

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

Charity Commission guidance on the changes
• Guidance for charities
• Guidance for trustees and senior managers
• Guidance on the waiver process and appeals

“Senior Managers”
• Chief Executive or equivalent
• Chief Finance Officer or equivalent

• 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

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

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

• 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

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

• For existing senior managers the same steps should also be taken
(send a contractual variation letter)
• Periodic re-declarations

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?

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

• 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.

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

‘Leading charities with conviction’
Christopher Stacey, Co-director
@chrisstacey | @unlockcharity

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.

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

Work out who the new rules cover

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

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.

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

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’)*

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

Ask current people whether they’ll be
‘disqualified’ from 1st August 2018

Support any individuals ‘disqualified’
to apply for a waiver ‘in advance’

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

Update your policies and practices
for future recruitment

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.”

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

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

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

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

Non-party campaigning rules
Campaigning when there is a minority
government
February 2018

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

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.

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

A healthy democracy
“Political parties and
campaigners are vital to a
healthy democracy and we
encourage active
participation by campaigners”
Electoral Commission

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

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

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.

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

Initial decision
•Do we need to register?
•Who makes the decision to register?
•Who is going to do the work?

Collecting the data
•The person with responsibility
•Staff carrying out the campaigning
•Finance and HR

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?

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%

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%

Blog posts 10% 100% 40%

12% 7.5%
Blog posts 10% 100% 40%
10% 4%
15% 20%

= public rallies and events 12% 7.5%
Blog posts 10% 100% 40%
= election material 10% 4%
= election material 15% 20%

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

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

Examples of projects
•Campaigning against nuclear weapons
• Long running
• Relevant in many Scottish constituencies
•Election guide/manifesto
• 28 pages
• 21 topics
• 15 staff

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.

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.

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.

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

THE ELECTORAL COMMISSION
Part 3
86

I am going to
cover • What is regulated activity
• The public and purpose test
• What it does and doesn’t cover
87

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

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

Public and
purpose tests • The purpose test
• Its objective

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

Purpose test Takes into account factors such as:
• tone
• context and timing
• call to action
• how a reasonable person would see the
activity

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?

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?

Purpose test • How a reasonable person would see
your activity?
Would they regard your campaign as
intended to influence people’s voting
choices?

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

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

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

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

Going Forward
• Modern guidance project
• Updating PFR on line system
100

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

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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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