The Fundraising Regulator has today published FAQs on its
website about the new fundraising requirements of the Charities
(Protection and Social Investment) Act 2016 (the 'Act'),
which come into force on 1 November 2016. These new requirements
set out additional items relating to charity fundraising which must
be covered in Trustees' Annual reports, and also stipulate that
the agreement between a charity and a professional fundraiser or
commercial participator must specify:
any voluntary fundraising scheme or
standard of fundraising that the fundraiser/participator undertakes
to be bound by;
how the fundraiser/participator will
protect vulnerable people and other members of the public from
unreasonable intrusion on a person's privacy, unreasonably
persistent practices and placing undue pressure on persons to
arrangements enabling the charity to
monitor compliance with the requirements set out in the
All charities that enter into agreements with professional
fundraisers or commercial participators on, or after, 1 November
2016 must ensure their agreements include the additional
requirements set out in the Act. Omitting to do this could mean a
charity is in breach of the Code of Fundraising Practice, and the
omission would also affect the ability of fundraisers/participators
to enforce agreements.
An important question, however, is the position regarding
agreements that have been made between charities and
fundraisers/participators before 1 November 2016. The
Fundraising Regulator's FAQs unfortunately do not clarify its
stance on this point, although the wording used does suggest it
expects existing agreements to be 'updated' to bring them
in line with the new requirements of the Act within a five month
period. At any rate, an unambiguous statement by the regulator on
this point would certainly be helpful.
If it is indeed the Fundraising Regulator's view that
existing agreements must be amended by 31 March 2017, there is a
distinction to be drawn between a regulator's policy and what
is required by legislation, as it is not clear that the Act
actually does oblige charities to renegotiate agreements which were
entered into before 1 November 2016. The relevant section wording
and the commencement provisions of the Act do not state this, and
there is a general presumption in law that legislation should not
be treated as changing the law in relation to events taking place
prior to legislation coming into force, unless it is stipulated to
It is worth bearing in mind that, unlike its predecessor (FRSB),
the Fundraising Regulator is not a 'membership' body;
registration is voluntary, and the terms and conditions of
registration do not include a direct commitment for a charity to
follow its directions. Also, that it talks about taking a
'flexible approach' in its FAQs, and clearly has an
appreciation of the challenges charities are likely to face in the
renegotiation of contracts. These facts, and the argument the Act
may not retrospectively apply to agreements made before 1 November
2016, should give charities some comfort, especially if an attempt
to try and renegotiate pre-1 November agreements would risk
damaging goodwill with commercial partners or fundraising
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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An assignment of rights under a contract is normally restricted to the benefit of the contract. Where a party wishes to transfer both the benefit and burden of the contract this generally needs to be done by way of a novation.
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