Points of law: Kicked into the long grass

Many fear that reform of public fundraising regulation might never happen

Face-to-face fundraising
Face-to-face fundraising

A recent decision by the Office for Civil Society has confirmed what many in the sector have long feared: that plans for a better way of regulating face-to-face fundraising are being put on indefinite hold.

The OCS decided that, rather than implement plans in the Charities Act 2006 for the commission to regulate the licensing for public charitable collections, it would refer the process to a review of that act, due to start next year.

The move is the latest postponement of the implementation of this section of the act, under which charities using face-to-face fundraisers to collect direct debits on the street or the doorstep would have to obtain a public collections certificate from the Charity Commission.

This would also apply to charities collecting clothes and other property, and selling goods or raffle tickets in public places.

During a debate in the House of Commons before the act was passed, Ed Miliband, then Minister for the Third Sector, described the existing system of regulation for public fundraising as "a bad combination of bureaucracy and inconsistency". Four years on, the sector is still living with this system.

The practice is currently regulated under the 1916 Police, Factories, etc (Miscellaneous Provisions) Act and the 1939 House Collections Act. Because neither of these refer explicitly to the collection of direct debit payments on the street, local authorities are free to decide whether to restrict the practice.

Some argue that the 1916 act allows them to do so, but the Public Fundraising Regulatory Association claims it does not. Its chief executive, Mick Aldridge, says taking legal action to try to clarify the position would "open a can of worms", generating bad publicity about a practice that is already controversial.

Most agree over the need for coherent legislation that clarifies who is responsible for regulating face-to-face fundraising, and many prefer the plan for the Charity Commission, rather than local authorities, to be the regulator. This is partly because they think that the commission would be more sympathetic than some local authorities to the use of face-to-face fundraising.

But the decision by the OCS to review the existing proposal suggests it might never be introduced. The commission has several times stressed that it would require extra resources to take on the task, and the expectation of its chief executive, Sam Younger, is that its budget could be cut by up to a third next year.

One alternative would be to insert a clause in the 2006 act making it clear that the 1916 legislation allows local authorities to restrict public collections of direct debits.

This would be likely to please councils, tie in with the government's decentralisation agenda and receive strong public support. But it would leave charities in the difficult position of having to negotiate with councils to use their powers leniently.

By Kaye Wiggins

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