Our weekly round up of news and updates from across the sector
Charity Commission
Guidance on display of trustee names on register
The Commission has updated its guidance on the display of trustee legal names on the charity register to clarify when dispensations are reviewed and add more information on time limited dispensations.
Commission CEO
David Holdsworth has been appointed as the next Chief Executive of the Charity Commission, replacing Helen Stephenson. He moves from the CEO position of the Animal and Plant Health Agency and was previously Deputy Chief Executive of the Charity Commission between 2017 and 2019. See this Civil Society article for sector reaction to his appointment.
Charity law cases
The High Court has refused an application to appoint a receiver to investigate the affairs of a substantial religious charity that operates internationally. It is a rare example of the court being asked to exercise this power. This contrasts with the frequently exercised power of the Charity Commission to appoint an interim receiver and manager, when it has opened a regulatory inquiry. The Court looked at the principles for deciding whether or not to appoint a receiver, which included being "satisfied that this is necessary or clearly desirable and in the best interests of the charity" when something has gone seriously wrong and the current trustees are not, or cannot address this (or there is a risk that this will happen). In applying this test the Court will make "due allowance for the fact the trustees are volunteers performing a public service."
In addition, the Court accepted that to appoint a receiver could seriously damage the standing of and confidence in the charity and that it would need to be very confident that appointing a receiver would provide benefits to the charity which outweighed those risks. The evidence in this case was not strong enough to support this.
Sector general
A report has found that charitable donations in the UK are not reaching the areas of greatest need. Donation nation: The geography of charitable giving in the UK looks at the extent to which charitable giving in the UK tackles regional inequalities and how local authorities can take a more active role in targeting charitable donations at specific regional needs.
Latest figures from The Good Merger Index show charity mergers are at a record low, with just 48 in the year to the end of April 2023. The report indicates that government and funder support helped charities navigate the pandemic without the need to merge.
Equality, equity, diversity and inclusion
Discrimination on the grounds of gender critical beliefs
The County Court has given judgment in the case of Ali v Green Party of England and Wales, in a case which will be of great interest to political parties and campaigners. Until early 2022, Mr Ali was the Green Party's spokesperson on policing and domestic safety. When he was removed from that position, he claimed that it was because of his gender critical beliefs and that the party had discriminated against him (along with other claims of unfavourable treatment). Gender critical beliefs are a protected characteristic under the Equality Act 2010 (Equality Act). However, this claim was not brought under the employment provisions of the Equality Act, but under the separate provisions for membership associations. The Green Party defended the claim on the basis that they had not subjected Mr Ali to discrimination; that he had breached party policy (which the party said was broadly pro-trans rights); and that, in interpreting the Equality Act, the court should take into account the rights of the Green Party and its members under the European Convention on Human Rights– meaning that the Equality Act could not be interpreted so as to permit the court to interfere in the way in which Mr Ali sought– particularly in relation to its decisions as to spokespeople, but also in the way in which it conducts its affairs as a political party.
Bates Wells represented the Green Party of England of Wales, against whom almost all claims were dismissed. Giving judgment, HHJ Hellman agreed with the Claimant on one matter: that his removal had been procedurally unfair, and that he could not rule out the possibility that this procedural unfairness had been due to the Claimant's protected beliefs. To that limited extent, the Claimant had been discriminated against. He was awarded £9,100 for injury to feelings. However, HHJ Hellman was careful to specify that it is explicitly not discriminatory for a political party merely to remove a spokesperson on the grounds of (in this case, gender critical) belief, provided it follows a fair procedure in doing so.
See here for the full summary, including a discussion of the interaction between the Equality Act and the Human Rights Act 1998. In particular, the principle which the judgment establishes: that political parties remain free to debate contentious issues, even in terms which might be considered offensive, as some degree of discrimination on the grounds of belief is part of the essence of democratic politics.
Bates Wells Mindy Jhittay, who acted for the Green Party, comments: "It is now beyond dispute that those with gender critical beliefs enjoy protection under the Equality Act. While those beliefs are protected, however, the issues with which they are concerned remain a matter of heated and ill-tempered political debate. This claim effectively asked the court to direct a political party in how to conduct that debate. It is to be welcomed that the court would not do so."
Women and the charity sector
In this article, the Directory of Social Change revisits the Women and the Charity Sector report published by Pro Bono Economics last November. It highlights key insights about gender equity in the sector, for instance, only 34% of the financially largest UK charities have a female CEO. Interviewees highlight areas where progress is being made, such as awareness raising of the need for diversity, and advantages of the sector like greater flexibility around part-time working.
Election and campaigning
See above under Equality, equity, diversity and inclusion.
Funders and funding
Fundraising Regulator
New Philanthropy Capital has published this blog by Ged Cassell, Funding Policy and Evaluation Manager at Barnwood Trust about what the Trust has learned from giving 'Experts with lived Experience' a genuine voice in decision-making and awarding funds.
Fundraising
A new report has warned that AI is not yet ready to make ethical fundraising decisions, but that it could be used in tandem by fundraisers to help guide through the process of making such decisions. Artificial intelligence and fundraising ethics: a research agenda found that AI does not yet know enough about the ethics of fundraising to make any decisions without human oversight.
Data protection
New ICO guidance for App developers
The Information Commissioner's Office has published four practical tips to help app developers comply with their data protection obligations and respect the data privacy rights of their users. Developers have been reminded that they must:
- Be transparent: Developers must provide concise, clear and easily accessible privacy information which explains to app users how their data is being processed, the purposes for that processing, who it will be shared with, and how long it will be retained.
- Obtain valid consent: App developers must comply with the high standards set by the UK GDPR for obtaining valid consent to process a user's personal data. Consent must be explicit, unambiguous and involve a clear action to opt-in, and it must be as easy to withdraw consent at any time as it is to give consent.
- Establish the correct lawful basis: Developers must establish a valid lawful basis in order to process personal data, such as consent, contract or legitimate interests. The choice of lawful basis is context specific and involves examining the purposes and scenario for the processing to determine which lawful basis (or bases) is most appropriate.
- Be accountable: Developers of apps must not only comply with the UK GDPR but be able to demonstrate their compliance. This includes taking appropriate measures to ensure any processing of data is lawful.
AI
See also under Fundraising above.
Government response to AI White Paper
The Department for Science, Innovation and Technology has published a response to its artificial intelligence White Paper consultation. The response contains a range of investment announcements and initiatives, including establishing a central function to coordinate regulatory activity within government. The government has also written to certain regulators (including the Information Commissioner's Office, the Competition and Markets Authority, the Financial Conduct Authority, the Legal Services Board and the Medical and Healthcare products Regulatory Agency, but not the Charity Commission) requesting them to publish an outline approach to AI regulatory guidance by 30 April 2024. It says that it will support them in this process through new guidelines and via the AI and Digital Hub pilot. The government confirmed that the Intellectual Property Office working group will not be producing a voluntary code of practice for copyright and AI.
The response confirms the government's plans to introduce voluntary regulatory guidance rather than legislation. It says that legislation may ultimately be needed across all jurisdictions, once AI risks are better understood, so that future advances in AI systems will be safe to use.
House of Lords report on AI
Following its inquiry, the House of Lords Communications and Digital Committee has published a report entitled Large language models and generative AI. The report predicts trends in AI development over the next three years, based on the evidence gathered by the inquiry, and compares these with the government approach to regulation as set out in the AI white paper. The report states that the government is too focused on AI safety and is in danger of missing opportunities presented by AI. It makes ten recommendations, including more support for commercial AI opportunities and the development of academic excellence. It suggests that a lack of government technical skills could lead to over-reliance on private sector expertise when developing regulation, causing regulation to favour this select group. In particular, the report criticises the lack of government guidance on copyright and generative AI and stresses the need for clear guidance (or legislation, where appropriate) in this area to protect copyright owners.
We reported a few weeks ago that the government had released a framework for use of AI in government. Here Bates Wells gives its top 10 tips for purposeful businesses to consider when looking to use AI.
Property
Terrorism (Protection of Premises) Bill: a further consultation
As reported by us previously, the proposed legislation (known also as "Martyn's Law") aims to enhance public safety by ensuring there is better preparedness for, and protection from, terrorist attacks. It will place requirements on those responsible for certain premises and events to carry out necessary steps to be more prepared to respond to a terrorist attack.
On 5 February, the Home Office launched a new consultation for smaller premises falling within the standard tier – these are premises with a capacity of between 100 and 799 individuals and which are used wholly or mainly for one or more purposes that are specified in the legislation. These include public libraries, museums and galleries, places of worship, and education and healthcare. It is proposed that certain places of worship will be standard tier premises (regardless of their capacity) provided they don't charge an admission fee. It is also proposed that premises used for childcare or primary, secondary or further education (but not higher education) will also be standard tier, regardless of capacity.
Following concerns raised about the potential burden being placed on standard tier premises – in particular voluntary and community-run premises – the government has revised its approach to the standard tier. Through this consultation, the government wants to test its revised approach and hear the views of organisations and the general public. Responses must be submitted by 18 March 2024.
Scotland
The Scottish government has said (in a response to a Parliamentary question) that it is considering making its review of charity regulation independent, in response to calls from the sector. The review comes in the wake of the Charities (Regulation and Administration) (Scotland) Act, which received Royal Assent last summer following which the government pledged that it would undertake a review of charity regulation but is yet to specify what form this review would take.
OSCR has published a report, Learning from OSCR's inquiries: Financial management (press release) which reflects on some recent inquiry cases and gleans some common themes and lessons from a financial perspective. It gives ten lessons on good financial governance.
Martin Tyson, Head of Regulation and Improvement at OSCR, reflects on OSCR's role in the lifecycle of Scottish charities and discusses some sector trends over the last year, with particular emphasis on charity dissolution.
See here for OSCR's monthly newsletter, 'OSCR Reporter', for February 2024.
OSCR has removed another 48 charities from the Scottish register, as they no longer meet the charity test. This usually means there is no evidence of continuing operation and failure to engage with communications from OSCR.
Health and social care
The Secretary of State has commissioned the Care Quality Commission to undertake a special review into Nottinghamshire Healthcare NHS Foundation Trust. As part of this it will look at evidence relating to the care of Valdo Calocane who was convicted of three counts of manslaughter this month.
This government announcement details a new children and young people cancer taskforce, with aims of improving detection, treatment and care for children with cancer. It will be coordinated in partnership with charities including Cancer Research UK, Teenage Cancer Trust, Young Lives vs Cancer and the Children's Cancer and Leukaemia Group.
The government has launched a new Disability Action Plan. It has 32 measures to help to make the UK more accessible, including building an online information hub for local authorities on creating accessible playgrounds. There has been sector comment on the proposals, for instance from Kids and Contact a Family. There is criticism that the plan lacks concrete proposals to tackle the cost of living crisis for people with disabilities and their families, such as through increases to the Carer's Allowance.
Social enterprise
Social Enterprise UK reports CIC registration is growing more than other business structures. New research in collaboration with the University of Worcester shows, among other points, that during the period 2018-2023 CICs were dissolved at a lower rate than other forms of business, that CIC registration is growing proportionately more than other business models, and that CICs tend to dissolve earlier.
The Office of the Regulator of Community Interest Companies has updated its page, Thinking about applying to become a Community Interest Company (CIC)?, by adding a video recording of its latest joint webinar with the Business Support Helpline, on the topic of how the CIC model operates and tips on completing an application.
Social investment/social impact investment
10 lessons from growing a market 10x in 10 years. Big Society Capital shares lessons learnt from its experience of supporting the development of the social impact investment sector over the last decade, touching upon market building initiatives and the importance of experimentation and partnerships to drive sustainable and consistent market growth.
Key features of UK Donor Advised Funds. Philanthropy Impact has published a report listing UK Donor Advised Funds, highlighting the key strengths and differences in structure and flexibility between the funds.
Faith based organisations
See above under Charity law cases and Property.
Housing
The Secretary of State continues to write to housing associations and councils following findings of severe maladministration by the Housing Ombudsman. This includes Clarion Housing, a charitable community benefit society.
Education
General
Ofsted and the Care Quality Commission have today published guidance for a series of thematic visits assessing how young people with SEND are being prepared for adulthood. They will carry out a series of in-depth reviews considering issues such as:
- How young people with SEND are being supported to achieve their full potential. For example, through further education or supported internships.
- How young people with SEND are empowered to make decisions for themselves and live as independently as possible.
- How children and young people with SEND are supported to participate in society.
- How children and young people with SEND are supported to be as healthy as possible in adulthood.
Schools
This Department for Education press release shows the Government has confirmed plans to fund the permanent removal of reinforced autoclaved aerated concrete from all 234 affected schools and colleges in England.
Further Education
The Government has opened a consultation on changes to national minimum standards in Further Education residential accommodation. It is a partner to the 'gender questioning guidance for schools and colleges' consultation and it is seeking views on changing the standards to match amendments in that guidance.
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