The Fundraising Regulator has today published FAQs on its website about the new fundraising requirements of the Charities (Protection and Social Investment) Act 2016 (the ‘Act’), which come into force on 1 November 2016. These new requirements set out additional items relating to charity fundraising which must be covered in Trustees’ Annual reports, and also stipulate that the agreement between a charity and a professional fundraiser or commercial participator must specify:
- any voluntary fundraising scheme or standard of fundraising that the fundraiser/participator undertakes to be bound by;
- how the fundraiser/participator will protect vulnerable people and other members of the public from unreasonable intrusion on a person’s privacy, unreasonably persistent practices and placing undue pressure on persons to donate; and
- arrangements enabling the charity to monitor compliance with the requirements set out in the agreement.
All charities that enter into agreements with professional fundraisers or commercial participators on, or after, 1 November 2016 must ensure their agreements include the additional requirements set out in the Act. Omitting to do this could mean a charity is in breach of the Code of Fundraising Practice, and the omission would also affect the ability of fundraisers/participators to enforce agreements.
An important question, however, is the position regarding agreements that have been made between charities and fundraisers/participators before 1 November 2016. The Fundraising Regulator’s FAQs unfortunately do not clarify its stance on this point, although the wording used does suggest it expects existing agreements to be ‘updated’ to bring them in line with the new requirements of the Act within a five month period. At any rate, an unambiguous statement by the regulator on this point would certainly be helpful.
If it is indeed the Fundraising Regulator’s view that existing agreements must be amended by 31 March 2017, there is a distinction to be drawn between a regulator’s policy and what is required by legislation, as it is not clear that the Act actually does oblige charities to renegotiate agreements which were entered into before 1 November 2016. The relevant section wording and the commencement provisions of the Act do not state this, and there is a general presumption in law that legislation should not be treated as changing the law in relation to events taking place prior to legislation coming into force, unless it is stipulated to do so.
It is worth bearing in mind that, unlike its predecessor (FRSB), the Fundraising Regulator is not a ‘membership’ body; registration is voluntary, and the terms and conditions of registration do not include a direct commitment for a charity to follow its directions. Also, that it talks about taking a ‘flexible approach’ in its FAQs, and clearly has an appreciation of the challenges charities are likely to face in the renegotiation of contracts. These facts, and the argument the Act may not retrospectively apply to agreements made before 1 November 2016, should give charities some comfort, especially if an attempt to try and renegotiate pre-1 November agreements would risk damaging goodwill with commercial partners or fundraising providers.