Supplementary memorandum from the Institute
of Fundraising (DCH 196)
1. DEVELOPING
A PROCESS
OF ARBITRATION
FOR CHARITIES
DISPUTING LOCAL
AUTHORITY RULINGS
ON PUBLIC
COLLECTIONS
The Institute of Fundraising welcomes the provision
in the draft Bill at 40 66H to allow a right of appeal to a magistrates'
court against a decision of a local authority to withdraw a certificate.
We believe that this provision, in conjunction with clear guidance
interpreting regulation, should ensure that local authorities
apply new regulations consistently and fairly.
1.1 Permits to conduct collections in a public
place and notified door to door collections
We believe that the right of appeal, set out
at 40 66H, should also apply in respect of decisions taken by
local authorities relating to permits to collect and notified
collections. The draft Bill is not clear that the right of appeal
against local authorities decisions extends beyond refusal to
issue a certificate of fitness.
1.2 Notification periods for larger charities
Where the draft Bill sets out the restrictions
on conducting door to door collections, 38 66A, it states that
charities must hold a certificate of fitness and must have notified
the authority "not later than one month before the day on
which the collection commences (but not more than six months before
that day)."
We believe that where larger charities, conducting
national collections, are concerned, the minimum period of notification
should be two months (see the Institute of Fundraising's submission
to the Joint Parliamentary Committee on Public Collections 4.3).
This is to allow sufficient time for appeals to be made against
local authority rulings so that national campaigns are not disrupted.
1.3 Notification for collections of goods
As we stated in the above submission (6.0),
the Institute believes that collections of goods should be subject
to a notification requirement. This is to ensure that local authorities
can readily distinguish between legitimate and fraudulent activity.
The evidence put to the Committee by Pippa Coombes of the Institute
of Licensing demonstrated the need for this. We believe that notification
should be given sufficiently regularly (a standard six-monthly
basis) to allow local authorities to monitor legitimate collecting
activity. A major collector of donated goods in Scotland has suggested
that they would not find it onerous to provide samples of collecting
materials (sacks, flyers) to local authorities on a six monthly
basis; we believe that this could also be of assistance in distinguishing
legitimate from fraudulent collections.
1.4 Arbitration
The Committee requested that we supply them
with further evidence relating to the potential for an arbitration
process for charities and local authorities. It was felt that
invoking the right of appeal could prove onerous, particularly
for smaller charities and that an arbitration process might prove
more flexible and less expensive.
1.4.1 Magistrates' Courts
The current process of appeal through magistrates'
courts is applied to other licensing processes, liquor and public
entertainments. The process of an appeal in these areas generally
allows for a first hearing within four weeks, although an appeal
can take up to six months to be resolved.
The cost of a summons is currently set at seven
pounds. Clearly, any legal costs incurred would be born by the
loser of an appeal.
1.4.2 The Charity Appeal Tribunal and Local Government
Ombudsmen (LGO)
The outline in the draft Bill (6 2A B C D) for
the Charity Appeal Tribunal establishes a model process of appeal
that could be applied to arbitration. It highlights the need for
a specialist body, versed in the likely nature of appeals, and
for funding to be made available to support the process.
Local Government Ombudsmen provide a route to
channel complaints, if authorities' own complaints handling procedures
have not proved satisfactory. The process is not swift and does
not currently provide an arbitration service.
We believe, therefore, that a process of arbitration
would require the establishment and funding of a new specialist
structure, although that structure might sit within the LGO.
1.4.3 Conclusion
We believe that the right of appeal to magistrates'
courts is the most appropriate route to challenge local authority
rulings. Local authorities are reluctant to take decisions that
they think might be subject to appeal. Magistrates already have
experience in hearing a wide range of appeals against licensing
decisions. The process is reasonably swift and cost-effective.
Charities would require specialist legal support for an appeal
of any nature, which will inevitably be the principal source of
cost. This new provision within the draft Bill will be effective
provided that the guidance written in support of new regulation
is clear and unambiguous, allowing magistrates to reach a judgement
on a local authorities' decision. Charities and local authorities
will be working within tight timescales, so the process of appeal
should be simple and immediate, something that magistrates' courts
can provide.
2. RESERVE POWERS
FOR STATUTORY
REGULATION
The Institute of Fundraising would reiterate
its view that while the draft Bill sets out (36 (3) (4) (5)) areas
that might be subject to regulation if reserve powers to control
fundraising are invoked, it does not set out:
(a) what the criteria are that might lead
the Home Secretary to invoke those powers; and
(b) what consultation process the Home Secretary
would follow before invoking those powers.
2.1 Further consultation
We believe that the draft Bill should include:
(a) a commitment to consult in order to establish
the criteria for success or failure of self regulation;
(b) a commitment to consultation before powers
are invoked; and
(c) an outline of the form that the consultation
at (b) would take.
3. PROFESSIONAL
FUNDRAISERS' STATEMENT
We believe that the amendment at 35 (2) of the
draft Bill will not serve the purpose of transparency that is
intended. There are three classes of individual who collect from
the public, volunteers, paid members of a charity's staff and
sub-contractors of the charity (professional fundraisers). The
principal distinction made by the public is between volunteers
and paid fundraisers.
The proposal made in the Institute's submission
on Public Collections to the Joint Parliamentary Committee at
9.2 suggests that all fundraisers should be required to make a
statement establishing their status. We would like to develop
that point by proposing that the professional fundraiser should
support their statement with a document setting out the nature
of the agreement that they hold with the charity. This would allow
the charity to set out the terms of the agreement in the appropriate
context in a way that a brief verbal statement could never achieve.
It would also ensure that information would be presented consistently
in a way that was subject to the charities, rather than the fundraisers,
control.
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