Bates Wells Briefing for Charities & Social Enterprises | 21 November

Bates Wells highlights

Social Enterprise

The Charity Commission has updated its guidance “Protecting charities from abuse for extremist purposes” to cover charities that regularly host or hold events at their premises.

A charity’s identity is one of its most valuable assets, and resolving a brand name dispute is not always easy. Our trade marks team are hosting an event to provide practical steps charities and social enterprises can take to help prevent disputes and solve them when they arise. Click here to find out more and book your place.

At a glance

The Charity Commission has updated and reformatted its Operational Guidance on students’ unions.

The inquiry Civil Society Futures has published its final report “The story of our times: shifting power, bridging divides, transforming society”.

A new Charity Digital Code has been published.

The Information Commissioner’s Office is consulting on an updated direct marketing code of practice and a code of practice for the use of personal information in political campaigns.

A motor industry employee has been sentenced to six months in prison for accessing a former employer’s customer data.

Charity Commission

Online forms

As mentioned in last week’s Briefing, the new “Change your charity details” service went live on 12 November. The following Commission online forms are now all accessed through this portal, for which the charity’s registration number and online password are needed:

  • Annual Return
  • Update charity details
  • Change the charity financial period
  • Change the charity’s governing document
  • Change the charity name

Updated guidance – protecting charities from abuse for extremist purposes

Chapter 5, “Protecting charities from abuse for extremist purposes” of the Commission’s Compliance Toolkit has been updated regarding the guidance it contains for charities that regularly host or hold events at their premises. The accompanying press release from the Commission, which focuses on the position of charitable students’ unions and higher education providers, says that the new guidance:

  • Highlights the centrality of freedom of speech to charities with purposes to advance education.
  • Stresses the positive and important role students’ unions and higher education providers have in the context of free speech and in educating through activism and discussion.
  • Stresses what charities can do in order to support charity trustees to manage some of the challenges associated with hosting speakers and debates.
  • Places due weight on the fact that inhibiting lawful free speech could damage a students’ union’s reputation, including their independence and credibility.

The Commission has also updated and reformatted its Operational Guidance on students’ unions, as a result of the new guidance.

New inquiry

The Commission has announced a new class inquiry into two connected charities, Idaara Maarif-E-Islam (506755) and The Voice of Truth (1094754).

The Commission says that it has concerns about financial irregularities involving both charities, including concerns linked to Gift Aid claims and the adequacy of financial controls. Other issues the inquiry will be examining include: the management of any conflicts of interest or loyalty arising between the two charities and individuals connected to both of them; whether the record of the identity of the trustees on the register of charities has been accurately maintained, and the extent to which any weaknesses in the management and administration of the charities identified by the inquiry were a result of misconduct and/or mismanagement by the trustees; adequate protection and processing of personal data. The Voice of Truth has already been removed from the register of charities after the inquiry found that it had ceased to operate.


To co-incide with Trustees’ Week last week, NCVO has published these blogs:

Also see below under Fundraising, Corporate Governance and Scotland.


Civil Society Futures, the two year inquiry, has published its final report “The story of our times: shifting power, bridging divides, transforming society”. Civil Society Media reports it concludes that charities and other civil society organisations must make radical changes and behave differently to ensure they are fit for the challenges of the future, or risk becoming irrelevant.

ACEVO has published a letter from the Secretary of State for Work and Pensions which they say clarifies the intent of anti-advocacy clauses in government contracts. See here for Esther McVey’s response.

The International Center for Not-for-Profit Law has published its 2017-2018 Annual Report. This year’s report focuses on work in over 100 countries to safeguard and strengthen civic freedom.

Charity Digital Code

A new Charity Digital Code has been published. Civil Society Media reports the code has been developed to help charities boost their digital skills. It includes a separate version aimed at small charities and has been divided into seven key principles. A set of resources have been curated for each principle and there are videos from sector leaders explaining how digital has helped them. Separately a new tool has launched which aims to help charities benchmark their progress against the code.

The Government has announced £1 million funding to support programmes helping charities to improve their digital skills.


Procurement and state aid

On 7 November 2018, the House of Commons Library published a report on EU state aid rules and WTO subsidies agreement. The report also looks at what might change after the UK leaves the EU.

Data protection

ICO enforcement

An investigation by the Information Commissioner’s Office (ICO) has found that the Metropolitan Police Service’s (MPS) use of the Gangs Matrix led to multiple and serious breaches of data protection laws. The investigation into the Gangs Matrix, a database that records intelligence related to alleged gang members, began in October 2017 after concerns were raised by Amnesty International. The ICO found that, whilst there was a valid purpose for the database, the inconsistent way it was being used did not comply with data protection rules. It has now issued an Enforcement Notice, compelling the MPS to ensure it complies with data protection laws in future and has given them six months to make these changes, which the MPS has accepted and already started to implement. Also see this blog by the Information Commissioner Elizabeth Denham.

A motor industry employee has been sentenced to six months in prison in the first prosecution to be brought by the Information Commissioner’s Office (ICO) under legislation which carries a potential prison sentence. Mustafa Kasim, who worked for accident repair firm Nationwide Accident Repair Services (NARS), accessed thousands of customer records containing personal data without permission, using his colleagues’ log-in details to access a software system that estimates the cost of vehicle repairs, known as Audatex. He continued to do this after he started a new job at a different car repair organisation which used the same software system. The records contained customers’ names, phone numbers, vehicle and accident information. NARS contacted the ICO when they saw an increase in customer complaints about nuisance calls and assisted the ICO with their investigation. The ICO usually prosecutes cases like this under the Data Protection Act 1998 or 2018, depending on the individual case. However, in appropriate cases, it can prosecute under other legislation – in this case s.1 of the Computer Misuse Act 1990 – to reflect the nature and extent of the offending and for the sentencing Court to have a wider range of penalties available.

ICO consultations

The ICO is calling for views on a Code of Practice for the use of personal information in political campaigns. The code will apply to all controllers who process personal data for the purposes of political campaigning. By “political campaigning”, the ICO means activity relating to elections or referenda, in support of, or against, a political party, a referendum campaign or a candidate standing for election. This includes processing by registered political parties, electoral candidates, referendum permitted participants and third party campaigners, as defined in the Political Parties and Referendums Act 2000. This is the first stage in the consultation process, which closes at 11.59 pm on Friday 21 December 2018.

The ICO is creating an updated direct marketing code of practice and has opened a consultation which closes on 24 December 2018.


Code consultation

The Fundraising Regulator’s Code consultation closed on Friday. See here for BWB’s response. Broadly, we fully support the aims of reducing duplication and rewriting the Code in plainer English but we do have concerns about this leading to inadvertent changes, some of which are significant. We are also calling for a further round of consultation if the final draft Code differs significantly from the consultation draft.

Also see these other responses:

  • from the Institute of Fundraising
  • from NICVA (Northern Ireland Council for Voluntary Action). This response highlights some interesting differences in fundraising law in Northern Ireland.

Giving Tuesday

Next Tuesday 27 November is Giving Tuesday. To mark the day, CAF has published a list of the craziest items charities have received as donations. They include a large raw fish and a half eaten black forest gateaux.

Small scale trading exemption

The detail of this exemption has now been published in Clause 40 of the draft Finance Bill 2019.

Fundraising with children

The Committee on Advertising Practice has announced a consultation to amend the CAP Code rules on marketing to children and the naming of prizewinners to reflect requirements in the Data Protection Act 2018 (DPA) and the General Data Protection Regulation ((EU) 2016/679) (GDPR).

Complaints handling

To help fundraising organisations handle complaints effectively, the Fundraising Regulator has teamed up with the Institute of Fundraising to deliver a training course on Wednesday 5th December. The course includes advice on good practice, how to write a complaints policy, and practical techniques for handling written complaints. See here for details.


Early years

The government has announced up to £18m funding to improve children’s early language and literacy, and boost parents’ confidence with home learning. It includes:

  • £6.5 million for projects focused on closing the disadvantage gap at age five and improving the early years education of children with SEND, including the Scouts Early Years Pilot Programme in partnership with Action for Children to create and test a national volunteer-led Early Years Scouts programme for children aged four and five;
  • £5 million for trials to be led by the Education Endowment Foundation in partnership with Shine in the north of England that will research the best way to help parents in disadvantaged communities to start building their children’s skills at home. This will include £1.8 million for a programme with Public Health England, including new speech, language and communication training for health visitors, delivered by the Institute of Health Visitors.


The Department for Education has updated its guidance Mental health behaviour in schools. The guidance is for school staff and applies to all types of schools including maintained schools, pupil referral units, maintained nursery schools, academies, free schools and independent schools. It is also intended to assist staff in alternative provision settings. The guidance has been updated to include non-statutory departmental advice on:

  • Schools’ responsibilities in relation to supporting the mental health and well-being of their pupils.
  • Understanding the link between mental health and behaviour and how to identify children with possible mental health problems.
  • Providing support for pupils as soon as problems emerge and collaborative working with other agencies. The guidance includes advice on accessing and shaping specialist services (such as educational psychology services and support for mental health), that are available locally.

Higher education

The government has announced in principle approval for accelerated 2 year degrees which will meet exactly the same quality assurance measures as standard degrees and will provide exactly the same level of qualification. For example, a two-year accelerated degree will condense 3-year degrees with 30 weeks teaching into 2 years with 45 weeks teaching. Subject to parliamentary approval, students who opt for a two-year degree will save at least 20 per cent (£5,500) in total tuition costs compared to a standard three-year course.

Health and social care

The Local Government Association (LGA) has published its final report, The lives we want to lead: Findings, implications and recommendations on the LGA green paper for adult social care and wellbeing, summarising the consultation responses that the LGA received to its own green paper on adult social care and well-being.

Social finance

Writing for Pioneers Post, Francesca Sanderson (Director of arts and culture investments and programmes, Nesta) shares her thoughts and experiences with The Arts Impact Fund – the world’s first impact investment fund specifically for the arts and cultural sector. They noticed two big points. This first was the need for longer-term funding and the second was that a large number of organisations are looking for smaller amounts of finance.

Also see under Scotland below.

Social value

The government has announced:

  • that by summer 2019, government procurements will be required to take social and economic benefits into account in certain priority areas. These include supporting small businesses, providing employment opportunities for disadvantaged people and reducing harm to the environment.
  • that government suppliers are drawing up plans in the unlikely event of business failure where another may need to step in. Capita, Serco and Sopra Steria will complete their ‘living wills’ within weeks.

Social enterprise

ESELA has re-branded as “ESELA – the Legal Network for Social Impact”. See here for ESELA’s latest newsletter.


Penny Mordaunt has announced that on 1st April 2019 the Government Equalities Office will move to Cabinet Office.

The government has launched ‘Purple Tuesday’, the UK’s first accessible shopping day.


See above under General and under Data protection, ICO consultations.

Procurement and state aid

See under Brexit above.

The European Commission has announced that it has decided to approve, under the EU state aid rules, a German scheme to support the retrofitting of diesel buses used for public passenger transport in approximately 90 municipalities where the limits for nitrogen oxides emissions were exceeded in 2016 or 2017. The public support will cover the costs of the retrofitting systems and their installation (see Commission press release IP/18/6414). The Commission has concluded that the contribution of the German scheme to EU environmental goals outweighs any potential distortion of competition brought about by the public financing.

Corporate Governance

The Alexander-Hampton Review has published its third annual report on improving gender balance in FTSE leadership, reporting that:

  • FTSE 100 companies are on track to meet the target of at least 33% women represented on boards by the end of 2020.
  • More work needs to be done to reach the target of 33% on the leadership teams of FTSE 350 companies by the end of 2020, although there has been an increase since 2017.
  • Chair roles have barely moved.


New Guidance

OSCR has published the final version of Charity Investments: Guidance and Practice following a consultation earlier this year (see here). The guidance covers the position in Scotland only, as governed by the Charities and Trustee Investment (Scotland) Act 2005; the law in this area is not the same as that of England and Wales.

There is also a blog post about the new investment guidance, by Laura Anderson, OSCR’s Head of Professional Advice and Intelligence.


The Charities Accounts (Scotland) Regulations 2006 are being amended in order to bring the recent updates made to the SORP (in Update Bulletin 2) into law.

The Regulations will become law on 1 January 2019, providing they pass through the Parliamentary process. The changes will affect:

  • larger charities (those with income of £250,000 and more)
  • all charitable companies
  • charities that use the Housing and Higher & Further Education SORPs.


OSCR posted blogs on each day of Trustees’ Week. The first was the blog about OSCR’s new investment guidance; the rest of the week’s blog posts, all by Jenny Simpson, Partner and Head of Charity Services at Wylie and Bisset LLP were as follows:

Northern Ireland

See above under Fundraising, Code consultation.

This information is necessarily of a general nature and doesn’t constitute legal advice. This is not a substitute for formal legal advice, given in the context of full information under an engagement with Bates Wells.

All content on this page is correct as of November 21, 2018.