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Law and Ethics: key developments

Law and Ethics: key developments. Anne Davis Head of Charity and Voluntary Sector. Charities Act 2011. Will be effective 14 March 2012 Consolidates existing legislation from the Recreational Charities Act 1958, the Charities Act 1993 and much of the Charities Act 2006.

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Law and Ethics: key developments

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  1. Law and Ethics: key developments Anne Davis Head of Charity and Voluntary Sector

  2. Charities Act 2011 • Will be effective 14 March 2012 • Consolidates existing legislation from the Recreational Charities Act 1958, the Charities Act 1993 and much of the Charities Act 2006. • The Act does not include part 3 of the 2006 Act which would make the Charity Commission the lead regulator of public charitable collections (this is part of the Charities Act 2006 review)

  3. Charities Act 2011: considerations • reference in letters of engagement and audit reports will have to change: • any letters of engagement and reports after 14 March 2012 should refer to Charities Act 2011 and anything before that date will make reference to current legislation. • No need to revised a document which is finalised before 14 March 2012, even if it relates to work and reports that will refer to the new legislation • APB likely to make necessary amendments to PN 11 late February/early March 2012.

  4. Charities Act 2006 Review • Led by Lord Hodgson: report to Parliament by 17 July 2012 • Terms of Reference will look at: • operation and effectiveness of the provisions of the 2006 Act • consider whether further changes could be made to improve the legal and regulatory framework for charities.

  5. Charities Act 2006 Review • The review will aim to answer the following 3 key questions: • what is a charity and what are the roles of charities? • what do charities need to have/be able to do in order to be able to deliver those roles? • what should the legal framework for charities look like in order to meet those needs (as far as possible)?

  6. Charities Act 2006 Review • Key areas being looked at: • current accounting, reporting and audit procedures, including cross-border requirements and reporting. • licensing regime for public charitable collections • self-regulation of fundraising activities • thresholds for registration of charities • effectiveness of organisational forms available to charities, including the Charitable Incorporated Organisation • Methods of supporting and encouraging individuals to volunteer as trustees, including concerns about trustee responsibilities, obligations and liability

  7. Question Feedback/comments please?

  8. The Bribery Act 2010 • Came into force 1 July 2011 • Ministry of Justice guidance: • clarifies interpretation of the Act • anti-bribery procedures

  9. The Bribery Act 2010 • Offering, promising or giving a bribe • Requesting, agreeing to accept, or accepting a bribe • Bribing a foreign public official • Failure of a commercial organisation to prevent bribery (“the commercial organisation offence”)

  10. The Bribery Act 2010 – The Core Offences • The core offences relate to the giving or receipt of ‘inducements’ to improperly perform a function expected to be carried out: • in good faith; • impartially; or • where the person involved is in a position of trust

  11. The Bribery Act 2010 – The Core Offences • ‘Improperly perform’ defined re expectations of persons performing those functions in the UK – even if the functions are carried out abroad • UK citizens held to UK standards of behaviour, wherever located – unless local ‘written law’ provides for different standards

  12. The Bribery Act 2010 – The Core Offences • Offences apply whenever: • Any part of the offence takes place in the UK; or • All parts of the offence take place outside the UK, but the offender is: • A UK citizen, or overseas citizen, • Ordinarily resident on the UK, • A UK incorporated body

  13. Facilitation Payments Not allowed

  14. Duress • This defence will be available where payment is needed to protect life, limb or liberty • It does not extend to protection of goods or business

  15. Hospitality and Promotional Expenditure • Proportionate expenditure is fine • As recognised as an established and important part of doing business • Review of corporate policies to prevent use as a cover for bribe paying would be sound practice

  16. The Bribery Act 2010 - The Corporate Offence • Commercial organisations commit offence if any person associated with them bribes another person intending to obtain or retain business or a business advantage for them. • Offence can be committed not just by UK companies, but by any other body corporate (wherever incorporated) which carries on a business, or part of a business, in the UK • ‘Associated persons’ includes anyone who performs services on behalf of the organisation – employees, agents

  17. The Corporate Offence – Adequate Procedures • Defence to the corporate offence to have adequate anti-bribery procedures, covering all associated persons • Statutory guidance on adequate procedures specifically required by Bribery Act and now in place

  18. The Corporate Offence – Adequate Procedures Six principles for bribery prevention: • Proportionate procedures • Top level commitment • Risk assessment • Due diligence • Communication (including training) • Monitoring and review

  19. What does this mean in practice? • Carry on doing business • but take action • review adequate procedures • think about integrity and codes of conduct

  20. Instilling Integrity in Organisations – a magic button?

  21. Reporting with Integrity

  22. Instilling Integrity

  23. Definition of integrity Moral values Motives Commitments Qualities Achievements

  24. Moral values Motives Commitments Qualities Achievements Behavioural characteristics of integrity Be honest and truthful Be fair Comply with laws Promote communityinterests Promote communityinterests Be open andadaptable Take correctiveaction Show consistency

  25. Drivers of organisational integrity Be honest and truthful Leadership Moral values Be fair Strategy Motives Comply with laws Be open andadaptable Commitments Policies Commitments Promote communityInterests Information Qualities Take corrective action Achievements Culture Show consistency

  26. What should the code say? • Integrity • Objectivity • Confidentiality • Competence and due care • Respect for others • Appropriate use of resources

  27. Who you are and your values

  28. Gifts and hospitality policy

  29. Seeking advice - whistleblowing policy

  30. Why should you follow the code of conduct? –tone from the top

  31. What if you don’t follow your code? • Insert suitable picture (coming from brand team)

  32. References Icaew.com/charity icaew.com/bribery icaew.com/lawandregulation icaew.com/ethics justice.gov.uk/guidance/making-and-reviewing-the-law/bribery.htm sfo.gov.uk/press-room/latest-press-releases/press-releases-2011/bribery-act-prosecution-guidance-published.aspx

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