Memorandum from Fundraising Initiatives
(DCH 205)
PROPOSAL TO
INCLUDE PUBLIC
PLACES
1. We warmly welcome many elements of the
draft Bill and wholly endorse the submissions of the PFRA and
the Institute of Fundraising. However, the addition of "public
places" (not within the PFRA's remit) and its current definition
does give rise to some concerns and a request for further clarity.
The stated reasons for wishing to include "public
places" are to close "a potential loophole for those
who wish to avoid the checks and controls of the licensing system."
Whilst it is unclear exactly which circumstances, organisations,
or persons are envisaged we have assumed by the language used
this is primarily aimed at bogus, or potentially fraudulent activities.
However, the use of the word "control" also implies
the potential to empower local authorities to manage/control capacity
and frequency of access on all private land, beyond the simple
issuance of a fundraising Permit.
This lack of clarity is of concern for the following
reasons:
(a) It does not sufficiently clarify,
or indeed define "public place", "unrestricted
access", or "checks and controls" so as to ensure
a comprehensive understanding as to the legal rights and responsibilities
of a private landowner, and/or the role of a local authority over
the use(s) of its land, in a charitable fundraising context. There
are many thousands of collections, currently not captured, already
occurring on such private land, be they for cash or Direct Debits.
Their inclusion will inevitably result in a potentially huge additional
administrative burden for organisations, including local authorities
and especially those based in London and the South Eastern, or
that include major conurbations.
(b) Many such "public place"
locations are indeed already managed, usually by concession agents
acting under contract, on behalf of the land/property owner, with
access and capacity issues already well and contractually established
with fees often charged for site use. Where retailers and/or site
owners are wholly in agreement with said activities. This is distinctly
different from "open" town or "street" locations
(which may, or may not have agreements in place with the PFRA).
If this is simply an issue of appropriate public awareness there
are many ways this can and is already achieved and communicated
by such site and/or concession management.
(c) Many such sites also accommodate,
with no checks and balances, various commercial sales activities,
giving rise to the very real prospect of charities being unfairly
disadvantaged when undertaking legitimate fundraising endeavours.
For example, no such controls or restrictions are sought with
other "advertising" mediums (such as press, TV, radio,
or direct mail), where it is assumed market forces and/or corporate
management are sophisticated enough to strike an appropriate balance.
(d) It is also commented, in the
Regulatory Impact Assessment (5.3 The definition of public place),
that permits should not be given in contravention of the wishes
of the site owner. An appropriate sentiment that is to all practical
intent highly unlikely to occur in "public places" located
on privately owned land. We believe the primary goal should be
to establish the legitimacy of collections on private land, where
access and capacity are already commercially controlled, illegitimate
collections, whatever their nature, constitute fraud and are covered
in law. Furthermore, it does not address the opposing situation
of permits not being granted by a local authority in contravention
of any perfectly legitimate and well managed desires of a private
site owner, assuming that proposed collections are legitimate
in all other respects.
(e) There also appears to be an
assumption that without such "checks and controls" there
will be abuses. This, whilst an appropriate goal, does not acknowledge
the practical reality that it is not in the interest of legitimate
fundraisers to "over work", or indeed "over man"
locations. It negatively impacts results and the existing management
of such sites would prohibit such behaviour in any event. If over
regulated it will result, for all parties, including most importantly
the voluntary sector, in the potential loss of otherwise very
valuable fundraising locations. These "public places"
are generally much more sophisticated and "controlled"
environments, by their very nature, than the average high street
and we believe should be acknowledged as such, rather than consolidated
with other "high street" related concerns.
(f) We believe it will be extremely
unhelpful for all parties to have to rely solely on issued "guidance"
to define how public collections law should be practically applied.
Unless it is clear and statutory in nature application of the
law will become open to wide interpretation and manipulation,
resulting in national inconsistencies. We believe it would be
unhelpful to assume the Bill can achieve its stated aims if it
does not provide unequivocal clarity for all parties. Without
this, administrative workloads and associated costs, especially
legal costs, will escalate. It will be left to charities, through
expensive and time-consuming case law, to fully define the act.
One of the very issues we understood the Bill sought to address.
2. If the purpose as stated is indeed mainly
to register activities and collectors, so as to ensure no bogus,
or improper activities are taking place, and can be reported if
found, then we wholly endorse this sentiment. However, we believe
that more clarity as to the purpose behind the addition of private
sites would be helpful, as well as clarity as to the role and
exercisable rights local authorities will have when issuing Permits.
3. We believe, if the purpose is to legislate
local authority management of capacity and access to privately
owned land consultation on the likely regulatory impact upon those
holding commercially agreed contracts, already with resources
providing management and controlling functions, should be undertaken.
To ensure the achievement of a framework that really will "support
and encourage a vibrant and diverse voluntary sector (which continues
to enjoy high levels of public confidence upon which the sector
depends)."
4. For all collections, but perhaps for
face-to-face in particular, these venues also provide a platform
for much more diverse communications activities. To add a further
administrative burden with, what appear at this time to be unclear
goals for so doing, would be detrimental not only to charitable
fundraising activities but in a much broader communications context.
Whilst we agree and acknowledge a charity's work should be open
to the highest scrutiny it is also important to recognise that
any and all similar commercial activities remain unregulated.
5. That any "promoter" should
need to gain a Certificate of Fitness and where appropriate a
Permit for "private places" we conceptually endorse.
However, we also believe, the criteria as to whom can legally
qualify as a promoter could be expanded to incorporate site management
and/or charity "agents" such as a PFO (Professional
Fundraising Organisation). This added flexibility would be particularly
helpful for long-term national campaigns, where the loss of the
National Exemption Certificate (NEC) for some, combined with the
effective opening of the national door to others, will necessitate
charities changing existing administrative systems. There are
already those who provide such administrative support on behalf
of charities and many "public places" with contractual
agreements already with effective control systems in place. It
seems a waste not to acknowledge this resource and its practical
potential to streamline administration for all parties.
6. Similarly, there will be a considerably
increased burden on local authorities, especially in London and
the South East. The net effect will be an additional workload
in the licensing and managing of many thousands of collections
not currently captured, be they for cash or Direct Debits. Whilst
we wholly endorse and agree with the motivation behind registering
all activities, we believe a simpler system can be determined
for certain "public places", especially those managed
under contract and undertaken on private land. A system acknowledging
the rights of all parties that simultaneously provides appropriate
checks and balances on legitimacy, rather than seeking to add
a largely unnecessary "control" infrastructure.
For example, it would be much more practicable
if locations with formalised commercial agreements, newly captured
by law as "public places", were simply permitted to
facilitate fundraising activities under a Certificate of Fitness.
When fundraising activities occur the recipient charity(ies),
or their agents would simply notify the relevant local authority
of their presence, as suggested for House-to-House licensing.
Capacity and access at such locations is already determined and
enshrined by contract. These locations, unlike those not in a
controlled environment, already have an infrastructure for allocation,
retailer support and public acceptance in place.
This also parallels local authorities having
no such mandate over similar wholly commercially based marketing
activities, with exactly the same potential for public nuisance
concerns attached. If this is not adequately addressed within
the Bill it will result in unnecessary and additional burdens
being placed on the voluntary sector and other involved parties.
We therefore seek clarity as to the exact role and powers local
authorities might/will enjoy when/if issuing such "public
place" Permits on privately owned premises, and to whom Permits
maybe issued.
7. As implied above, we also seek clarity
that Professional Fundraising Organisations (PFOs) can apply,
in their own name, for Certificates of Fitness and Permits on
behalf of the charities for whom they work. A service currently
provided to many charity clients, again releasing much of the
administrative burden from charities, whilst simultaneously providing
one informed contact source for local authorities. We appreciate
and wholly endorse that "street" locations may be managed
in collaboration with the PFRA. However, private land "public
places" will not be, as the PFRA does not at this time seek
to incorporate private sites, specifically because they are already
managed by concession agreements.
8. Attached as Annex I is a letter from
an organisation that undertakes contractual concessions management
outlining their concerns, we also have similar letters from other
such organisations.
CLARITY ON
WORKPLACE FUNDRAISING
1. The current drafting of the Bill would
seek to imply that Payroll Giving and Direct Debt activities in
the workplace, with the full endorsement of the employer, or where
appropriate land owner/manager, are also to be captured by this
proposed legislation. We would therefore ask for clarity on this.
It is our understanding this was not intentional, as the nature
of such activities means they are generally a planned part of
a company's corporate social responsibility programmes and frequently
positioned, and therefore viewed, as promoting company and government/employee
benefits provided to staff. In some cases they are as a direct
result of a charity's special relationship(s) and are not ad
hoc activities.
CLARITY ON
SCOTTISH AND
NORTHERN IRISH
CHARITIES ABILITY
TO FUNDRAISING
IN ENGLAND
AND WALES
1. As the Bill is currently drafted charities
head quartered in Scotland and Northern Ireland will not be able
to fundraise in England and Wales. We believe this too was unintentional
and would seek further clarity.
June 2004
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