Session slides from Trustees' Conference 2018

1. THE LEGAL AND
REGULATORY LANDSCAPE:
AN UPDATE
SPEAKERS
ALICE FAURE WALKER
EMMA KNUCKEY
LUCAS ATKIN
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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. CHARITY COMMISSION
UPDATE
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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. Charity Commission – new strategy
• “…to ensure charity can thrive and inspire
trust so that people can improve lives and
strengthen society.”

6. Charity Commission – safeguarding
• Broader definition than “protecting children
and vulnerable adults”
• Link with serious incident reporting regime
• Influence of Central Government policy

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. 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. Transparency
• New Annual Return questions:
– Income from outside the UK
– Overseas expenditure
– Salaries and benefits
• Accounts Monitoring Review
• “Double defaulters”

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. 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?

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CHARITY TRIBUNAL
UPDATE

13. Charity Tribunal update
• 10 year anniversary of charity tribunal
• Less than 10 cases this year
• Awaiting two Upper Tribunal decisions

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

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DATA PROTECTION UPDATE

16. Meet your host

17. Social media: dangerous?

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. Punishments: trends to date

20. ICO fines
• Facebook
• The British and Foreign Bible Society
• Equifax
• Royal Free Hospital

21. Equifax v Royal Free Hospital
• ICO enforcement action – Equifax fined
• Difference between the breaches

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. Keep calm – points to note
• Active vs passive breaches
• What are you trying to achieve?
• Accountability
• Organisational compliance

24. Data storage

25. Retention and archiving
• Data minimisation
• Is archiving an option?

26. International transfers

27. US Privacy Shield
• Current status
• Should you check your US suppliers?

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. Right of subject access

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. Thoughts/Comments/
Questions?

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FUNDRAISING UPDATE

33. Fundraising Regulator

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. 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. 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

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OTHER LEGAL AND
REGULATORY NEWS

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. Automatic disqualification of senior
managers
Anyone automatically disqualified is also automatically
disqualified from acting as a senior manager in a charity

40. Action to take
• Are existing trustees affected?
• Who are your senior managers? Are they
affected?
• Waivers?
• Build new circumstances into recruitment
procedures

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. 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. 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. 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