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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

Law and Ethics: key developments

Anne Davis

Head of Charity and Voluntary Sector


Charities act 2011
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)


Charities act 2011 considerations
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.


Charities act 2006 review
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.


Charities act 2006 review1
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)?


Charities act 2006 review2
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


Question
Question

Feedback/comments please?


The bribery act 2010
The Bribery Act 2010

  • Came into force 1 July 2011

  • Ministry of Justice guidance:

    • clarifies interpretation of the Act

    • anti-bribery procedures


The bribery act 20101
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”)


The bribery act 2010 the core offences
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


The bribery act 2010 the core offences1
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


The bribery act 2010 the core offences2
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



Duress
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


Hospitality and promotional expenditure
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


The bribery act 2010 the corporate offence
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


The corporate offence adequate procedures
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


The corporate offence adequate procedures1
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


What does this mean in practice
What does this mean in practice?

  • Carry on doing business

    • but take action

    • review adequate procedures

    • think about integrity and codes of conduct





Definition of integrity
Definition of integrity

Moral values

Motives

Commitments

Qualities

Achievements


Behavioural characteristics of integrity

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


Drivers of organisational integrity
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


What should the code say
What should the code say?

  • Integrity

  • Objectivity

  • Confidentiality

  • Competence and due care

  • Respect for others

  • Appropriate use of resources






What if you don t follow your code
What if you don’t follow your code? top

  • Insert suitable picture (coming from brand team)


References
References top

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