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Legal update for voluntary organisations
  • Employment & volunteering
  • Equality
  • Legal structures & charitable status
  • Risk, funding, finance & property
  • Activities & services (everything else)
  • Archived items

  • ON THIS PAGE
    Items are in order of chapters in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3). Dates in red below have been updated in the past three months.


    CONSUMER RIGHTS VSLH3 Ch.21
    Contracts and contract law

  • Consumer Rights Act 2015 (added 13/11/15)
  • Archived items for this chapter

  • VSLH3 Chapter 40
    Health & safety

  • Health, safety & welfare publications & guidance (added 7/10/13)
  • Adventure activities licensing (updated 7/10/13)
  • Revision of approved codes of practice (ACoPs) (updated 7/10/13)
  • End of civil liability for breach of health and safety law (added 7/10/13)
  • Self-employed people & h&s (updated 1/10/15)
  • Health and safety poster and leaflets (updated 31/3/14)
  • Rules eased on no-smoking signs (added 30/9/12)
  • Young people as employees and on work experience (added 7/10/13)
  • Right for Sikhs to wear turbans (added 1/10/15)
  • First aid training (updated 7/10/13)
  • RIDDOR reporting (updated 7/10/13)
  • Registration for providing food in village halls and other community settings (updated 7/10/13)
  • Archived items for this chapter

  • VSLH3 Chapter 41
    Safeguarding children & vulnerable adults

  • Safeguarding resources (updated 6/3/16)
  • Guidance on safeguarding for volunteer involving organisations (added 2/2/15)
  • Licensing of performances by under-16s (updated 26/5/13)
  • Disclosure & barring service website & contact details (updated 26/5/13)
  • DBS criminal record checks & update service (updated 17/6/13)
  • Criminal record checks for people from overseas (added 13/6/13)
  • Regulated activity (updated 26/5/13)
  • DBS barred lists & referrals (updated 22/1/13)
  • Rehabilitation periods for offenders (added 1/4/14)
  • Archived items for this chapter

  • VSLH3 Chapter 43
    Data protection & use of information

  • Freedom of information & environmental information resources (added 28/4/13)
  • Freedom of Information Act: Contracts with public authorities (updated 28/4/13)
  • Data protection resources (updated 23/2/14)
  • Consultations on ICO strategy and priorities (added 23/2/14)
  • "Bring your own device" policies and procedures (added 23/2/14)
  • Data protection and temporary workers (added 23/2/14)
  • EU reform of data protection law (updated 23/2/14)
  • Archived items for this chapter

  • VSLH3 Chapter 44
    Intellectual property

  • Intellectual property court reforms (updated 8/2/15)
  • Changes to copyright law: In effect now (added 8/2/15)
  • Changes to copyright law: In the pipeline (added 8/2/15)
  • Copyright guidance (added 8/2/15)
  • Archived items for this chapter

  • VSLH3 Chapter 45
    Publications, publicity and the internet

  • Archived items for this chapter

  • VSLH3 Chapter 46
    Campaigning & political activities

  • Resources on lobbying and campaigning (updated 24/3/14)
  • Changes to government consultations (added 24/3/14)
  • Statutory register of lobbyists (updated 24/3/14)
  • A register of lobbyists for Scotland? (added 24/3/14)
  • Campaigning in the run-up to elections (updated 24/3/14)
  • Changes to judicial review (updated 24/3/14)
  • Archived items for this chapter

  • VSLH3 Chapter 47
    Public events, entertainment & licensing

  • Guidance on organising community events (updated 2/3/14)
  • Locally set fees for alcohol & entertainment licensing (added 24/11/14)
  • Personal licences to sell alcohol (added 24/11/14)
  • Alcohol licensing: Increased maximum for temporary event notices (added 24/11/14)
  • Alcohol licensing: Community & ancillary sellers notices (added 24/11/14)
  • Deregulation of regulated entertainment (updated 24/11/14)
  • PPL & PRS licences for playing or performing copyright music (updated 2/3/14)
  • The risks of forgetting about licences (added 2/3/14)
  • Archived items for this chapter

  • LEGAL UPDATE
    FOR VOLUNTARY ORGANISATIONS:
    ACTIVITIES AND SERVICES


    For information about the legal update website for voluntary organisations, disclaimers and other sources of updates, see the legal update website home page. The five pages that make up the legal update website are Employment & volunteering, Equality & human rights, Legal structures & charitable status, Risk, funding, finance & property, and Activities & services (everything else: health & safety, safeguarding, data protection, intellectual property, marketing, campaigning, events and more).

    Items about changes which took place more than a year ago are archived at www.sandy-a.co.uk/vslh.htm.

    To be notified when the legal update website is updated, click to send an email, asking to receive update notifications. Please give your name, organisation, email and postal addresses and telephone number. Your postal address and phone number are used to contact you if emails bounce. To avoid spamming, an email address is not given on screen.
    If you can't see the word 'Legalupdate' after 'click' in the first line, or have trouble sending an email by clicking on it, the address is legalupdate at sandy-a.co.uk, with the spaces and 'at' replaced by the @ symbol.


    CONSUMER RIGHTS


    CONSUMER RIGHTS ACT 2015

    Added 13/11/15. This information updates s.21.2.3 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    From 1 October 2015 the Consumer Rights Act 2015 (CRA) significantly updates and consolidates consumer law, making it clear what should happen when goods or digital content are faulty, or when services are not provided with reasonable care and skill. The CRA brings together 10 pieces of longstanding and sometimes contradictory pieces of legislation, repealing all or most of the Sale of Goods Act 1979, Supply of Goods and Services Act 1982 and other legislation.

    Charities and other not for profit organisations
    The Consumer Rights Act relates only to transactions between a trader and a consumer. These are often referred to as business-to-consumer transactions, but the statutory definition of "trader" in the CRA is wider than what might usually be thought of as a business.

    Under s.2 of the CRA, a trader is a person acting for purposes relating to that person's trade, business (including the activities of any government department or local or public authority), craft or profession. A trader may be acting personally, or through another person acting in the trader's name or on the trader's behalf.

    In this context, "person" includes not only individuals, but also bodies whether incorporated or unincorporated (Interpretation Act 1978, sch.1).

    Charities and other not for profit organisations are not explicitly mentioned, but neither are they excluded. Guidance from the Department for Business, Innovation and Skills (for example, in the "What is a trader?" section at tinyurl.com/ozuyh78) makes clear that the CRA applies to charities and other not for profit organisations. So if such organisations charge for goods, services or digital content, they are traders as defined by the act.
    Do not be misled by the 99.9% of information about the CRA which gives the impression it applies only to businesses. It applies to charities and other not for profit organisations as well.

    A consumer is defined as an an individual acting for purposes that are wholly or mainly outside that individual's trade, business, craft or profession. So the provision of goods, services or digital content to an organisation would not be covered, because even though the organisation is a "person", it is not an individual.

    The definition of consumer is significantly changed; previously, individuals were consumers only if they were acting for purposes wholly outside their trade, business, craft or profession.

    Any organisation, whether charitable or not, which sells goods, services or digital content directly to individuals should review its terms and conditions to ensure they comply with the relevant provisions of CRA. It may also want to display the new rules near the payment section on its website, and in its premises near where service users, customers or others pay for goods or services.

    The next part of this article, up to Further information, is adapted from "A guide to the Consumer Rights Act 2015", published by Stone King LLP. Many thanks to solicitor Brian Miller and Stone King for consent to use this.

    Key points
    Some of the main points of the Consumer Rights Act are:
    • Within 30 days of purchase, a consumer has a right to an immediate refund if the goods supplied are faulty.
    • Within six months of purchase, if a faulty good cannot be repaired or replaced, the consumer will be entitled to a full refund in most cases.
    • For up to six years, if purchased goods do not last a reasonable length of time, the consumer may be entitled to some money back.
    • If a trader does not carry out a service with reasonable care and skill, the consumer has a right to request that the service be repeated or fixed. If it cannot be fixed, the consumer will be entitled to some of their money back.
    • If a consumer and trader have not agreed a price before the service is delivered, the consumer must pay a reasonable price.
    • If a timescale for the delivery of a service has not been agreed beforehand, it must be carried out by the trader within a reasonable time.
    • A consumer who has purchased digital content which is faulty is entitled to a repair or replacement.
    • If a fault with digital content cannot be fixed, or if it has not been fixed within a reasonable time and without significant inconvenience, the consumer is entitled to either a full or partial refund.
    • If a consumer can demonstrate that the faulty digital content has damaged their electronic device and that the trader has not used reasonable care and skill, the consumer may be entitled to a repair of that device, or compensation.

    The sale and supply of goods
    What can the consumer expect?
    Under the ss.3-32 of the Consumer Rights Act, certain standards apply for the sale and supply of goods. This includes hire purchase, hire, part exchange and contracts for work and materials.
    • The trader selling the goods must have the right to do so.

    • The goods must be of a satisfactory quality. This means they must be of a standard that a reasonable person would regard as satisfactory. The quality of the goods covers a number of factors including fitness for purpose (in the context of the purposes for which the goods of that type are usually supplied), appearance and finish, minor defects, safety and durability.

      In assessing the quality of the goods, all of the relevant factors must be considered, including price, description, and the advertising used by the trader.

    • The goods must be fit for a particular purpose. When a consumer indicates that goods are required for a specific purpose, or where it is obvious that goods are intended for a particular purpose and a trader supplies them to meet that requirement, the goods should be fit for that specified purpose.

    • The goods must match the description. When a consumer relies on a description (or perhaps a sample or display model) the goods supplied must match expectations. If the goods do not conform, an offence may have been committed.

    • Where installation has been agreed as part of the consumer contract, the goods must be installed correctly.
    A consumerís remedies for breach of rights
    Previous consumer rights legislation was unclear about the length of time consumers were entitled to a refund for faulty goods. This has now been clarified.
    • Short-term right to reject. If the goods do not meet the requirements above, there is a short period during which the consumer can reject them. This period is 30 days unless the expected life of the goods is shorter (such as highly perishable goods). This right does not apply where the only breach relates to an incorrect installation of goods.

      If the consumer asks for repair or replacement during the 30-day period, the period is paused so that the consumer has the remainder of the 30-day period or seven days, whichever is longer, to check whether the repair/replacement has been successful and to decide whether to reject the goods.

      When the goods are rejected, the consumer is entitled to a full refund.

      The trader is responsible for the reasonable cost of returning the goods, unless the consumer is returning them to the place where he or she took possession of them, if this is a requirement under the contract in order to get a refund.

    • Repair or replacement. When there has been a breach of the sales contract, a consumer who has failed to exercise any right to reject the goods will be entitled to claim a repair or replacement.

      This repair or replacement must be carried out with no cost to the consumer, and in a reasonable time and without causing significant inconvenience to the consumer.

      Where repair or replacement fails, the consumer is entitled to further repairs or replacements or can claim a price reduction or the right to reject.

    • Price reduction and the final right to reject. If repair or replacement is not available or is unsuccessful, or is not provided within a reasonable amount of time and without significant inconvenience to the consumer, the consumer can claim a reasonable price reduction or reject the goods by returning them to the trader.
    The burden of proof
    Regardless of the remedy being pursued, if the defect is discovered within six months of delivery, it is assumed that the fault was there at the time of delivery unless the trader can prove otherwise.

    If more than six months has elapsed, the consumer has to prove the defect was there at the time of delivery.

    The supply of services
    What can the consumer expect?
    The trader supplying the service must ensure that the following standards are met (Consumer Rights Act ss.48-57).
    • The service must be carried out with reasonable care and skill. Where it has been relied upon by the consumer, information that has been relayed to the consumer (either orally or in writing) is binding.

    • Where the price is not agreed before the service is carried out, the price must be reasonable (and will be judged against the prices that similar traders have charged).
    Where there is no agreement in relation to time, the service must be carried out within a reasonable timeframe.

    A consumerís remedies for breach of rights
    When a service does not comply with the requirements, the consumer has the following remedies.
    • A repeat performance of the service can be requested when the service has not been carried out with reasonable care and skill.

      This work must be done at no cost to the consumer, within a reasonable time and without causing significant inconvenience to the consumer.

    • The consumer can claim a price reduction where a repeat performance is impossible or cannot be done within a reasonable time and without causing significant inconvenience to the consumer.

      A reduction in price can also be claimed where the service has been carried out to a good standard, but where it has not been carried out in a reasonable time.

      The price reduction can be anything up to 100% of the amount paid, depending on how serious the breach has been.

    • Exceptions. If the service has been carried out using reasonable care and skill and in a reasonable amount of time, a consumer cannot make a claim if the service did not achieve the consumerís desired outcome, unless that outcome was agreed first.

      A consumer cannot make a claim where they are responsible for things going wrong (e.g. they requested that the trader use cheaper materials, short-cuts, etc).

    The sale of digital content
    With digital and downloadable products becoming an ever-growing and prominent part of the consumer market, the Consumer Rights Act ensures that consumer law makes specific requirements in relation to such content (ss.33-47).

    Digital content can include products such as computer games, television programmes, films, music, e-books, computer software, and phone and tablet apps.

    What can the consumer expect?
    The trader supplying the digital content must ensure that the following standards are met.
    • The digital content must be of satisfactory quality. When deciding whether digital content is satisfactory, three factors are taken into account: any description that was attached to the digital content; the price paid; and all other relevant circumstances such as public statements made in advertising and labelling.

      Quality of the digital content is to be considered in terms of safety, durability, the product being free from minor defects, and the fitness for all the purposes for which digital content of that kind is usually supplied.

    • Fit for a particular purpose. If, before a contract is made, a consumer makes known to the trader a particular purpose that they intend to use the digital content for, this becomes a term in the consumer contract. The consumer may make this particular purpose known to the trader directly or by implication.

      An exemption to this requirement is if it can be shown that the consumer did not rely on, or it was unreasonable for the consumer to rely on, the skill or judgement of the trader.

    • The digital content is as described. The content must match the description that has been given to it by the trader. This applies regardless of how the content compares to any trial version that had been examined prior to the completion of the contract.
    A consumerís remedies for a breach of rights
    • Repair or replacement. If there is a quality defect in the digital content, the consumer can request that the content is replaced or repaired. This must be done by the trader within a reasonable amount of time and without significant inconvenience to the consumer.

      The trader must bear any costs that are involved in replacing/fixing the content.

      The consumer does not have a right to repair or replacement if it would be impossible to do so, or it would be disproportionate in comparison to any other remedy.

      If the consumer shows that the digital content is defective within six months of its supply, it is to be taken as being defective on the day it was supplied.

    • Price reduction is only available where replacement/repair is not possible, or replacement/repair has been requested by the consumer, but not carried out within a reasonable time or not without significant inconvenience to them.

      The agreed reduction must be refunded without undue delay, and no more than 14 days after the reduction has been agreed between the trader and the consumer.
    Free digital content
    The rights and remedies available to consumers under the CRA are still available when digital content has been given away for free, provided that the free digital content has been supplied under a contract where the consumer has to pay for goods, services or other digital content in order to get the "free" content.

    For example, if a consumer is given free anti-virus software when purchasing a laptop computer, the consumer would have the same rights as described above in relation to the software.

    Damage caused to a device or other digital content
    Where digital content has been supplied and causes damage to a device or to other digital content belonging to the consumer, and the damage is of a kind that would not have occurred if the trader had exercised reasonable care and skill, the consumer can request:
    • Repair of the damage. This must be carried out within a reasonable time, without significant inconvenience and without cost to the consumer.

    • Payment of compensation. This must be given by the trader to the consumer without undue delay, and in any event within 14 days of the trader agreeing to pay the compensation

    Unfair terms
    The Consumer Rights Act has built upon the Unfair Contract Terms Act 1977 in relation to protecting consumers against unfair contract terms (ss.61-76).

    The test for "unfair terms" in the CRA is the same as that in UCTA: that a term is unfair if, "contrary to the requirements of good faith, it causes a significant imbalance in the parties' rights and obligations to the detriment of the consumer".

    The most significant change as now embodied in the CRA relates to relevant terms. These are terms specifying the key elements of the contract, such as the main subject matter of the contract or setting the price. These relevant terms are not subject to the fairness test provided that they are:
    • transparent: in plain language, and legible (if in writing); and
    • prominent: brought to the consumerís attention in a way that an average consumer (defined in the CRA as reasonably well informed, observant and circumspect) would be aware of the term(s).
    This test goes further than existing law, which includes the 'transparency' requirement but not the 'prominence' requirement. Traders should now be even more wary of ensuring that relevant terms are clearly brought to a consumer's attention.

    Further information
    The above information is slightly adapted from Stone King LLP's "A guide to the Consumer Rights Act 2015", by Brian Miller and Richard Jones. It is on the Stone King website via tinyurl.com/qaok6r8.

    Other useful briefings are "The Consumer Rights Act 2015" on p.9 of the Bates Wells Braithwaite summer 2015 Charity and Social Enterprise Update, at tinyurl.com/q4wdq4g; "Get ready for the Consumer Rights Act" from Charles Russell Speechlys, at tinyurl.com/p2k2hnw; and "The Consumer Rights Act" from Reed Smith, at tinyurl.com/qgyj4up.

    These three briefings summarise aspects of the CRA additional to the article above, including:
    • any pre-contract information or statements said or written to the consumer, by or on behalf of the trader, about the trader or a service, is to be treated as a contractual term of the contract for that service, if it is taken into account by the consumer when deciding to enter into the contract or when making any decision about the service after entering into the contract (CRA s.50);

    • issues around credit agreements;

    • of particular interest to charities and other organisations which organise major events: new rules on secondary ticketing, where tickets are resold for events by someone other than the original seller (CRA ss.90-95 & sch.10);

    • the right of enforcement bodies such as trading standards departments and the Competition and Markets Authority to apply to the courts for an enforcement order, which may include enhanced consumer measures such as requiring the trader to appoint a compliance officer, provide training to staff, collect information from customers on compliance by the business, sign up to an alternative dispute resolution (ADR) scheme to manage complaints, and/or set up a scheme to provide redress to consumers and ensure the scheme is publicised (CRA ss.77-79 & sch.5-7);

    • new rights of collective action by consumers (CRA s.81 & sch.8).
    The Business Companion website, with information on all aspects of trading standards, is at www.businesscompanion.info. It has separate sites for England, Scotland and Wales (it is not clear enough that "England" at the top of the page is a drop down menu). It does not cover Northern Ireland, where the law is generally very similar but specific advice should be taken.

    Business Companion's article about the Consumer Rights Act, at tinyurl.com/nrbc84p links to a consumer rights summary, in plain English, from the Department for Business, Innovation and Skills. This is in a colourful PDF version for display by traders for their customers and staff, and in a Word version that traders can adapt. There are versions for England and Wales, and for Scotland.

    The same article also has links to guides on the sale and supply of goods, supply of services, digital content, mixed contracts, returns policies, letting agents, sale and resale of tickets, unfair contract terms, and trading standards. At the end of the article are checklists for traders.

    Note that nearly all of the above articles and guidance, apart from the one from Bates Walls Braithwaite, refer only to businesses. But the Consumer Rights Act applies in the same way to charities and other not for profit organisations which sell or charge for goods or services.

    The Consumer Rights Act 2015 is at www.legislation.gov.uk/ukpga/2015/15/contents. For related regulations search for consumer rights at www.legislation.gov.uk.

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    HEALTH AND SAFETY


    HEALTH, SAFETY AND WELFARE PUBLICATIONS & GUIDANCE

    Updated 7/10/13. This information updates chapter 40 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    Recent resources from the Health and Safety Executive (HSE) include the following:

    • Managing for health and safety, available in print (HSG65) from HSE or free download at www.hse.gov.uk/managing/index.htm, was substantially refreshed and enhanced on 1 August 2013. It is intended for larger organisations, and will be of use to governing body members and senior staff, as well as workers and their representatives. It has four key sections: core elements of managing for health and safety; are you doing what you need to?, delivering effective arrangements, and resources.

    • The Health and safety toolbox: How to control risks at work website, created in November 2012, is intended for small, low risk organisations. It includes brief summaries and links to more detail guidance in relation to the organisation, its workers and its workplaces; electrical safety; fire safety; gas safety; harmful substances; manual handling; noise; personal protective equipment; pressure equipment; machinery, plant and equipment; radiations; slips and trips; vibration; working at height; working in confined spaces; and workplace transport. It is at www.hse.gov.uk/toolbox/index.htm.

      The toolbox is intended to be used alongside the health and safety made simple website at www.hse.gov.uk/simple-health-safety, and guidance on specific workplaces such as offices (www.hse.gov.uk/office).

    • A revised version of HSE's brief guide for employers, Managing upper limb disorders in your business, was issued in August 2013. It can be downloaded as a free PDF at www.hse.gov.uk/pubns/indg171.htm. Upper limb disorders are often called RSI or repetitive strain injury.

    • The third edition of of HSE's very detailed Maintaining portable electrical equipment, intended for managers, electricians, technicians and users, was published on 27 September 2013. It can be purchased for £15 or downloaded as a free PDF at www.hse.gov.uk/pubns/priced/hsg107.pdf.

      For low risk environments, Maintaining portable electrical equipment in low risk environments at www.hse.gov.uk/pubns/indg236.htm is likely to be adequate. HSE continues to emphasise that it is a myth that all appliances must have portable appliance testing (PAT) annually. HSE makes clear that testing appliances to ensure they are safe may be necessary, but for low risk appliances in a low risk environment, simple checks such as looking for frayed cables or other obvious signs of damage may be enough.

    • For providers of health and social care services, HSE has frequently asked questions (FAQs) at www.hse.gov.uk/healthservices/faqs.htm. These cover fire and electrical safety, infection control, lifting equipment and manual handling, skin at work, slips and trips, falls from height, and much more, and are regularly updated.
    The Trades Union Congress (TUC) is another excellent source of information about health and safety. Recent resources, all available via tinyurl.com/dxksp8y, include:
    • New and expectant mothers at work
    • Mental health conditions
    • Exposure to chickenpox in the workplace
    • Preventing aches and pains from using display screen equipment
    • Working in a noisy environment
    • Working with substances that cause skin problems
    • Working with animals
    • Working in or near water, rivers and seas.
    Other guides include meningitis in the workplace, working with asbestos, working with lead, working with sewage, driving lift trucks, working in extremes of temperature, and hand-arm vibration syndrome.

    The fourth edition of the TUC's best-selling guide to health and safety, Hazards at work, was published in March 2013. It costs £18 for TUC member organisations, £30 for educational, voluntary and not for profit organisations, and £45 for other organisations. Details are at www.tuc.org.uk/workplace/tuc-22014-f0.cfm.

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    ADVENTURE ACTIVITIES LICENSING

    Updated 7/10/13. This information updates s.1.9.3 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    Following consultation from June to September 2011, legislation was going to be developed to abolish the Adventure Activities Licensing Authority, as recommended by Lord Young in his review of health and safety law in 2010, with licensing to be replaced with a code of practice. This was originally expected to be in place by 31 March 2012, but following concerns raised in the consultation, the process was "paused" (HSE's word). Further information was expected in late 2012, but as of October 2013 nothing had happened.

    Until the licensing regime is reviewed, providers of adventure activities must continue to comply with the current requirements. HSE has also consulted with the devolved administrations in Scotland and Wales, and both Scotland and Wales have said they wish to continue operating within the AALA statutory framework.

    Up to date information about the HSE consultation is available at www.hse.gov.uk/aala/index.htm.

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    REVISION OF APPROVED CODES OF PRACTICE

    Updated 7/10/13. This information updates chapter 40 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    Approved codes of practice (ACoPs) provide guidance on implementation of health and safety law. A breach of a code cannot itself be prosecuted, but may form evidence of a failure to achieve proper standards.

    As recommended in the Löfstedt review of health and safety legislation in November 2011, the Health and Safety Executive consulted from 26 June to 14 September 2012 on proposals to revise, consolidate or withdraw 15 ACoPs, and to make minor revisions or no changes to a further 15. Following this, revised ACoPs were drawn up for control of substances hazardous to health (COSHH), dangerous substances and explosive atmospheres, and control of legionella bacteria, with a consultation on the drafts from 13 June to 23 August 2013. The revised ACoPs were expected to come into use in late 2013 and 2014.

    Also following the 2012 consultation, a consultation on a revised ACoP on workplace health, safety and welfare took place from 7 May to 30 July 2013, and a consultation on a draft ACoP on working with asbestos from 8 July to 30 September 2013.

    A further proposal is for all ACoPs to be limited to a maximum of 32 pages, unless there is a specific reason it needs to be longer.

    Information about the consultations is at www.hse.gov.uk/consult/live.htm.

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    END OF CIVIL LIABILITY FOR BREACH OF HEALTH AND SAFETY LAW

    Added 7/10/13. This information updates s.40.1 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    Breach of health and safety law is a criminal offence, enforceable by the Health and Safety Executive. In addition, most breaches have also been strict liability civil offences. This meant a person could bring a civil claim against the duty holder (usually the employer) for injury or disease caused by breach of the relevant health and safety legislation, without having to show that the duty holder was negligent (failed to take all reasonable steps to protect their employees).

    From 1 October 2013, s.69 of the Enterprise and Regulatory Reform Act 2013 amends s.47 of the Health and Safety at Work etc Act 1974, to completely change this position. Unless an exception applies, a person who has been injured or become ill because of the duty holder's failure to comply with h&s law can now claim for compensation only where it can be proved that the duty holder has been negligent. Failure to comply with h&s law is no longer, in itself, a civil offence.

    Regulations can allow exceptions to this change. So far there are exceptions for new and expectant mothers, who will still have a right to bring a civil claim for breach of a health and safety duty specific to their being pregnant, having recently given birth or breastfeeding, without having to show the duty holder was negligent.

    The Trades Union Congress (TUC) has said that this change "could have massive implications for compensation cases and will lead to a legal nightmare as the courts have to unpick decades of case law on compensation. It is also almost certainly going to fall foul of European regulation."

    The Enterprise and Regulatory Reform Act 2013 is at www.legislation.gov.uk/ukpga/2013/24/contents/enacted. The Health and Safety at Work etc. Act 1974 (Civil Liability)(Exceptions) Regulations 3013, bringing in the exception for new and expectant mothers, is at www.legislation.gov.uk/uksi/2013/1667/contents/made.

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    SELF EMPLOYED PEOPLE AND HEALTH AND SAFETY

    Updated 1/10/15. This information updates s.40.2 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    Under s.3.2 of the Health and Safety at Work etc Act 1974, self employed people must carry out their work in a way that ensures, so far as is reasonably practicable, that they are not themselves exposed to risks to their health or safety. They must also, of course, ensure the health and safety of their employees, and others who are not employees but may be affected by the work activities of the self employed person and his/her employees.

    Following a recommendation in the Löfstedt review of health and safety legislation in 2011, a consultation in 2012 considered whether self employed workers whose work activities pose no potential risk of harm to others should be exempt from health and safety law. The consultation made clear that the proposed change would not apply to self employed people who employ others, or whose work activities pose a potential risk of harm to others, or to self employed people such as farmers, builders and gas fitters who work in high risk environments. And the change would not affect the duty that other employers have to self employed workers.

    During the consultation the majority of respondents, including the Institute of Health and Safety which represents health and safety professionals, were opposed to the change, on the basis that self employed people might think they are exempt from the legislation even if they have employees and/or are engaged in risky activities, and people who control workplaces where self employed people work might think they have no health and safety duties in relation to them.

    Despite the opposition of h&s professionals, trade unions and others, the change was included in s.1 of the Deregulation Act 2015, and came into effect on
    1 October 2015.

    The Health and Safety Executive (HSE) estimates that h&s law will no longer apply to 1.7 million self employed people such as novelists, journalists, graphic designers, accountants, financial advisors and online traders, which are clearly low risk and where a common sense approach can be taken.

    At the other end of the scale, regulations state that health and safety legislation continues to apply to self employed workers in "prescribed undertakings". These are agriculture, asbestos, construction, gas, genetically modified organisations and railways.

    The legislation also applies to activities which are not prescribed, but which pose a risk to the health and safety of another person, other than the self employed person carrying it out or their employees.

    (This doesn't make sense to me, because if the self employed person has employees, the law continues to apply. And surely if a self employed person has employees and is carrying out an activity with some element of risk, he or she should need to comply with h&s law in relation to the employees? Maybe I'm missing something. Or maybe it's because the draft regulations initially only included the list of prescribed undertakings above, and this catch-all clause was added as a last minute amendment after intense lobbying by h&s professionals, trade unions and others — with "no discussion, no consultation and no consideration of the actual consequences", in the words of the Trades Union Congress.)

    HSE guidance for self employed people is on the HSE website via tinyurl.com/pq6pjpj. The guidance makes clear that a person will not be self employed in relation to h&s law if they employ anyone or are engaged in activities which could pose a risk to other workers or to members of the public, even if they are recognised by HMRC as self employed for tax purposes.

    The Deregulation Act 2015 is at www.legislation.gov.uk/ukpga/2015/20/contents/enacted.
    The Health and Safety at Work etc Act 1974 (General Duties of Self-Employed Persons)(Prescribed Undertakings) Regulations 2015 are at www.legislation.gov.uk/uksi/2015/1583/made.

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    H&S POSTER AND LEAFLETS

    De-archived & updated 31/4/14. This information is included in s.40.2.1 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    All employers are required, by law, either to display an approved health and safety poster at all workplaces or to provide each of their workers with the equivalent leaflet. These set out the obligations of employers and workers in relation to health and safety, and what to do if there is a problem. The only statutory exception to the requirement is in relation to sea-going ships.

    From 6 April 2014, only the versions of the poster and leaflet published in April 2009 can used. The transition period during which the old poster could be displayed or the old leaflets used ends on 5 April 2014. Unlike the old versions the new ones have photographs, so it's easy to differentiate them.

    The free leaflets are available as a pocket card or as a leaflet, easy read leaflet, large print leaflet or talking leaflet. English/Welsh versions of the poster and leaflet are available, and there is a separate version of the poster and pocket card specifically for Northern Ireland. All can be ordered via www.hse.gov.uk/pubns/books/lawposter.htm.

    Information about the legal requirements is at www.hse.gov.uk/contact/faqs/lawposter.htm. The Health and Safety Information for Employees Regulations 1989 are at www.legislation.gov.uk/uksi/1989/682/contents/made. Amendments in 2009 created the five-year transition period.


    RULES EASED ON NO-SMOKING SIGNS

    Added 30/9/12. This information updates s.40.4.2 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    Virtually all enclosed and semi-enclosed public places, including workplaces, places of voluntary work and vehicles owned by the organisation, must be smoke-free. Employers must display the proper signage and are responsible for ensuring all staff, service users, customers and visitors are aware of the regulations. Smoking in non-smoking premises, permitting people to spoke in non-smoking premises, and failing to display the required no-smoking signs are all offences.

    From 1 October 2012 the Smoke-free (Signs) Regulations 2007, which applied only to England and prescribed the design, the size (A5) and location (at all the entrances to premises) of no-smoking signs, are repealed. They are replaced with an obligation to display one legible no-smoking sign in smoke-free premises and one in smoke-free vehicles. The signs do not need to be in a specific format and in premises do not need to be at an entrance.

    The Smoke-free (Signs) Regulations 2012 are at www.legislation.gov.uk/uksi/2012/1536/made. They apply only in England. Wales, Scotland and Northern Ireland have separate legislation on smoke-free premises and vehicles.

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    YOUNG PEOPLE AS EMPLOYEES AND ON WORK EXPERIENCE

    Added 7/10/13. This information updates s.40.6.1 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    To make it easier for employers to take on students on work experience, the government announced several health and safety initiatives on 21 June 2013. The news release summarising these is at tinyurl.com/k8942lx.

    HSE issued simplified guidance in relation to young people (under 18) at work — both as employees and on work experience — making clear that employers have the same responsibilities to young people on work experience as they do to employees, but clarifying that if workplace risk has already been assessed with young people in mind, it does not need to be repeated for each person on work experience. The same general principles apply to volunteers.

    The guidance is at www.hse.gov.uk/youngpeople/index.htm, and a six-page leaflet, Young people and work experience: A brief guide to health and safety for employers, can be downloaded free of charge at www.hse.gov.uk/pubns/indg364.htm or purchased at five copies for £5.

    HSE has made clear that there is no need for burdensome paperwork or an over-cautious approach in organising work experience, and that employers who are already effectively managing health and safety risks are unlikely to need to do anything additional for work experience. Schools and colleges do not need to conduct their own risk assessments, but need to ask relevant questions to confirm that the work experience provider has appropriate measures in place.

    The insurance industry has made a commitment to treat work experience students as employees for the purpose of insurance against physical injury, so the students will be covered by the employer's existing employers' liability compulsory insurance (ELCI) policy. Insurers have also agreed that simply providing work experience opportunities for students will not in itself affect ELCI premiums. A government letter confirming these commitments is at tinyurl.com/kgd2hkw.

    There is more information about insurance in briefings on the Association of British Insurers website at tinyurl.com/pe4vbpa and tinyurl.com/pr85xda, and these should always be checked. This is especially important if the work experience placement is not arranged by a school or college, does not comply with Department for Education work experience guidelines, lasts for more than two weeks, or is overseas.

    Organisations which do not have employees, and therefore do not have employers' liability compulsory insurance, will need to take out this insurance for the duration of the placement.

    The Department for Education issued a short briefing outlining the changes being made by various government departments — not just those concerned with health and safety — prior to work experience becoming an integral part of study programmes for 16 to 19 years olds from September 2013. This briefing can be accessed via tinyurl.com/opp9evx.

    Finally, since 25 July 2012 employers have not been able to carry out criminal record checks on staff whose only contact with children or young people is supervising young people aged 16 to 17 on work experience. Prior to this, checks could be carried out on staff even if their only contact with children or young people was supervising them on work experience. This change to the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 was made by s.11(3) of the Rehabilitation of Offenders Act 1974 (Exceptions)(Amendment)(England and Wales) Order 2012, which is at www.legislation.gov.uk/uksi/2012/1957/made.

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    RIGHT FOR SIKHS TO WEAR TURBANS

    Added 1/10/15. This information updates s.40.6.5 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    The Employment Act 1989 s.11 allows Sikhs to wear turbans rather than safety helmets on construction sites. The Deregulation Act 2015 s.6 amends this to allow them to wear turbans rather than safety helmets at any workplace.

    There is an exception where a helmet is necessary to protect the Sikh from a risk of injury, and he works in an occupation that involves responding to fire, riot or other hazardous situations, or is a member of HM forces or providing support to HM forces and is taking part in a military operation.

    The Deregulation Act 2015 is at www.legislation.gov.uk/ukpga/2015/20/contents/enacted.

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    FIRST AID TRAINING

    Updated 7/10/13. This information updates s.40.9.1 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    From 1 October 2013 the Health and Safety (First Aid) Regulations 1981 have been amended, to remove the requirement for the Health and Safety Executive to approve first aid training and qualifications. This change applies to employers of all sizes.

    Employers still have the same requirement to assess their first aid needs to establish what provision is required, taking into account factors such as number of employees, location and nature of the activity.

    The Health and Safety at Work Act 1974 clearly places a duty on the employer to select a competent provider for first aid training. Revised HSE guidance issued on 2 September 2013 explains how employers can identify and select competent providers. These include providers offering first aid qualifications regulated by the qualification regulators (Ofqual, the Scottish Qualifications Authority and the Welsh Government Department for Education and Skills); providers operating under voluntary approval schemes, such as a trade or industry body with quality assurance schemes accredited by a third party (such as UKAS); providers who operate independently of any such scheme, but can demonstrate their competence to an employer by providing evidence that they meet the criteria set by HSE; or the recognised voluntary aid societies (St John Ambulance, British Red Cross and St Andrewís First Aid).

    The changes follow the recommendation of the Löfstedt review of health and safety legislation, published in November 2011, that it should no longer be a requirement for HSE to approve the training and qualifications of appointed first aid personnel. HSE consulted from 22 October to 3 December 2012 on this and related proposals

    The regulations, along with Regulations and guidance (L74), Selecting a first-aid training provider (GEIS3), and a summary of the implications of the changes are on the HSE website at www.hse.gov.uk/firstaid/changes-first-aid-regulations.htm.

    Information about all aspects of the first aid requirements is at www.hse.gov.uk/firstaid.

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    RIDDOR REPORTING

    Updated 7/10/13. This information updates s.40.9.2 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 (RIDDOR) require employers and other people who are in control of work premises, including self employed people, to report and keep records of work-related deaths as well as some serious injuries, industrial diseases and dangerous occurrences, and near-miss incidents. Dangerous occurrences and near misses are those that have the potential to cause serious harm, even if they don't lead to absence or incapacitation. Some injuries to members of the public affected by the organisation's activities must also be reported.

    From 1 October 2013, the rules governing what must be reported to HSE have been simplified and clarified. The classification of major injuries is replaced with a shorter list of specified industries; the previous schedule listing 47 types of industrial disease is replaced with eight categories of reportable work-related illness; and fewer types of dangerous occurrence have to be reported.

    HSE emphasises that there has been no significant change to the reporting requirements for fatal accidents, accidents to non-workers and accidents resulting in a worker being unable to perform their normal duties for more than seven days. Nor has there been any change to the current ways to report an incident at work, or the criteria that determine whether an incident should be investigated.

    These changes follow a recommendation in the Löfstedt review of health and safety legislation in November 2011, and an HSE consultation from 2 August to 28 October 2012. Critics of the change are concerned that many significant injuries, illnesses and incidents no longer have to be reported, and will thus become statistically invisible.

    The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 are at www.legislation.gov.uk/uksi/2013/1471/made. Information about the changes and all aspects of RIDDOR are on the HSE website at www.hse.gov.uk/riddor.

    The October 2013 changes follow other RIDDOR changes on 6 April 2012. Since then, work-related injury or illness has to be reported to HSE only if it leads to absence from work or the person being unable to carry out their normal work for more than seven days, rather than more than three days as was required prior to 6 April 2012. The days absent or incapacitated do not include the day on which the injury occurred.

    This change from over three days to over seven days reporting was recommended by the Young report on health and safety, and brings the incident reporting threshold into line with the period for obtaining a GP's fit note for sickness absence.

    Employers and others with RIDDOR responsibilities must still keep records of injury or illness that could have caused absence or incapacity to carry out normal work for more than three days. If the employer has to keep an accident book, as most do, this record will be adequate.

    Also from 6 April 2012, the period for RIDDOR reporting to HSE was extended from 10 to 15 days.

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    REGISTRATION FOR PROVIDING FOOD IN VILLAGE HALLS AND OTHER COMMUNITY SETTINGS

    Added 7/10/13. This information updates s.40.10.1 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    An organisation involved in the production, supply or sale of food must generally register with the local authority environmental health department. This applies not only if food is prepared on the organisation's premises, but also if it is prepared elsewhere and distributed on the premises.

    Where premises are used by more than one organisation that produces or supplies food (for example, a village hall where various organisations provide food to their service users), each organisation that provides food must be registered. The premises do not have to be registered unless they also provide food.

    However, registration is only required if an activity has "a certain continuity of activities" and "a certain degree of organisation". Because of a lack of clarity and consistency about what this means in practice, the Food Standards Agency issued guidance on 31 July 2013 to clarify when registration is required for food operations in village halls and other community settings. The guidance is intended to help organisers of community and charity events who want to provide food, and to help local authority food safety officers decide whether activities carried out in the village hall, community and charity sectors need to be registered.

    The guidance says that in general, providing food less than once a month is not considered to have "a certain continuity of activities" and would not need to be registered. However, depending on the complexity of food safety controls, vulnerability of consumers and size of event, even an occasional event might have "a degree of organisation" and should be registered. The guidance includes examples of how the FSA interprets continuity and organisation.

    Even if food provision does not need to be registered with the local authority, it usually needs to comply with food safety and food hygiene legislation. And even if there is not a statutory duty to comply with the legislation (this could include, for example, occasional handling, preparation, storage and serving of food by private individuals at events such as church, school or village fairs), there is still a general duty of care to ensure food is safe.

    A press release on the new FSA registration guidance, with links to that guidance and also to general guidance on food safety and hygiene, is at www.food.gov.uk/news-updates/news/2013/jul/halls.

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    SAFEGUARDING


    SAFEGUARDING RESOURCES

    Updated 6/3/16. This information updates chapter 41 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    A revised version of the Department for Education's statutory guidance, Working together to safeguard children, was published on 26 March 2015. It covers the core legal requirements on individuals and organisations to keep children safe and sets out, in one place, the legal requirements that health services, social workers, police, schools and other organisations that work with children must follow. The guidance can be downloaded via tinyurl.com/nfpas5c.

    The Safe Network, hosted by NSPCC, provides core standards and guidance for safeguarding children in the voluntary and community sector. Its resources, on the NSPCC website via tinyurl.com/hww728b, include an online self-assessment tool, a toolbox of resources, and a free download for community groups, voluntary organisations and clubs, which can be used as a starting point for developing safeguarding procedures.

    For resources specifically about safeguarding in volunteer-using organisations, Charity Commission guidance on safeguarding, and the disclosure and barring service and DBS (criminal record) checks, see the relevant articles below.

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    GUIDANCE ON SAFEGUARDING FOR VOLUNTEER INVOLVING ORGANISATIONS

    Added 2/2/15. This information updates ss.39.10.1 & 41.1 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    The National Council for Voluntary Organisations published at some point in the past year (I can't find a date on its website, the document itself, or via Google) an excellent 22-page guide, Safeguarding for volunteer involving organisations: A guide to help you develop a comprehensive approach to safeguarding in your organisation. As well as clear information about safeguarding policy and good practice, it includes clear information and scenarios about when disclosure and barring checks are and are not necessary; information on recruiting a volunteer with a criminal record; and useful flowcharts on regulated activity relating to children and young people and relating to adults.

    Nearly all aspects of volunteering are the same for volunteers as for paid workers, but there is at least one difference of which I am aware. Paid work with the opportunity for contact with children in specified establishments, such as schools, nurseries and children's homes, is always regulated activity, even if it is supervised; but work carried out by volunteers supervised to a reasonable level, in accordance with the statutory guidance on supervision, in these establishments is not regulated activity. There may be other differences, so the flowcharts in the NCVO publication should be used only for volunteers.

    Safeguarding for volunteer involving organisations is on the KnowHow NonProfit website via tinyurl.com/mcx7tuz.

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    CHARITY COMMISSION GUIDANCE ON SAFEGUARDING

    Updated 22/1/13. This information updates s.41.1.2 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    The Charity Commission's revised guidance Finding new trustees: What charities need to know (CC30) took effect from 10 September 2012, with the section on vetting trustees reflecting changes introduced by the Protection of Freedoms Act 2012. The vetting section also reflects the Commission's safeguarding strategy, published in April 2012, for dealing with issues around safeguarding children and vulnerable adults in charities.

    The strategy sets out trustees' responsibilities to take steps to protect children and vulnerable adults from harm, explains how to prevent problems from arising and how to deal with allegations and incidents of abuse, and makes clear that trustees must develop and implement safeguarding systems and monitor these on a regular basis to ensure they are working in practice. It emphasises the importance of conducting regular risk assessments and reporting serious incidents to the relevant authorities, including the Commission.

    The strategy also describes the Commission's role and approach in dealing with safeguarding issues in charities.

    Both CC30 and the Commission's strategy state, "The position of trustee of a children or vulnerable adults charity is not a regulated activity in itself. It is only if trustees have close and unsupervised contact with beneficiaries that they would fall within the scope of regulated activity and be eligible to obtain an enhanced DBS (CRB) check and barred list check. A trustee of a charity who no longer falls within the definition of regulated activity would be eligible to obtain an enhanced DBS check (but without a barred list check).

    "We strongly recommend that trustees of charities that work with children or vulnerable adults and that are eligible to obtain a DBS check do so, to ensure both that the person they wish to appoint as a trustee is eligible and to ensure the safety of the charity's beneficiaries."

    Although the first paragraph is accurate, in my view it is confusingly worded. I think it would be clearer if it said something along the lines of:

    "Prior to 10 September 2012, being a trustee of children's or vulnerable adults' charity was legally defined as a regulated activity, and it was unlawful for a person to become or serve as a trustee, or for the charity to invite a person to become a trustee, if the person was on the list of people barred from working with (as applicable) children or vulnerable adults. It was therefore wise (though not in most cases a statutory requirement) to carry out an enhanced criminal record check (now a Disclosure and Barring Service check) to ensure the person was not on one of the barred lists.

    "Since then, the position of being a trustee of charity that works with children or vulnerable adults has ceased to be, in itself, a regulated activity. A trustee or potential trustee remains eligible for an enhanced DBS check, but this will not include information from the barred lists.

    "However, trustees who have close and unsupervised contact with beneficiaries may, depending on the nature of the contact, be engaged in regulated activity. If they are barred from working with the beneficiary group it will be unlawful for them to engage in the activity and for the charity to allow them to do so. Because of the regulated activity, the trustee will be eligible for an enhanced DBS check which will include information from the relevant barred list, and the charity should carry out this check.

    "Whether or not the trustee is carrying out regulated activity, we strongly recommend that trustees of charities that work with children or vulnerable adults and that are eligible to obtain a DBS check do so, to ensure both that the person they wish to appoint as a trustee is eligible and to ensure the safety of the charity's beneficiaries."

    This is a lot longer than what is currently in CC30, and it could almost certainly be shortened and made clearer. But I think it more accurately reflects a very confusing situation.

    The strategy can be accessed on the Charity Commission website via tinyurl.com/m5ycq9t.
    CC30 is at www.charity-commission.gov.uk/publications/cc30.aspx.

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    LICENSING OF PERFORMANCES BY UNDER-16s

    Updated 26/5/13. This information updates s.40.6.1 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    The Department for Education and the Welsh government carried out a joint consultation from 24 May to 3 August 2012 on local authority licensing of performances by children and young people under age 16. The government's response to the consultation was published on 13 February 2013 and is on the DfE website via tinyurl.com/ng583lk.

    The key purpose of the measures proposed in the consultation was to increase the opportunities for children to benefit from taking part in performances, and to ensure that children in different areas can access them on an equal basis. The proposals covered theatre, television, radio, film productions, modelling and sport. The intention of the changes was to:

    • create a presumption that licences will be issued if it is clear that the safety and welfare of children before, during and after performances is not at risk;
    • put an onus on parents to take responsibility for their children's activities, and on producers to show they have carried out risk assessments and put safeguarding arrangements in place;
    • clarify, simplify and strengthen guidance on exactly what needs to be licensed;
    • make it easier for youth and amateur productions to involve under-16s by allowing producers to apply for group licences every two years to cover all under-16 performers, rather than having to apply for individual children's licences for each show;
    • make clear that the role of local authorities is solely to make decisions about safeguarding arrangements, not to interfere in producers' editorial or artistic decisions or override parents' or guardians' judgment about what is right for their child.
    The changes would apply in England and Wales. However, responses to the consultation were varied, and the government's conclusion is: "All parties agreed that children should be able to benefit from opportunities to take part in performance activities. There were, however, very different views about the arrangements needed to increase opportunities whilst protecting children from undue risk. Respondents to the consultation raised a number of issues that require further consideration. Overall, respondents were not clear that the package of proposals in this consultation would increase equality of opportunity." The response does not indicate how the consultation will be followed up.

    A press notice with a detailed summary of the proposed changes can be accessed on the Department for Education website via tinyurl.com/6snpbj6. The consultation document can be accessed via tinyurl.com/886mcn7.

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    DISCLOSURE AND BARRING SERVICE WEBSITE & CONTACT DETAILS

    Updated 26/5/13. This information updates ss.41.4-41.7 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    The Disclosure and Barring Service (DBS) started operating on 1 December 2012. Under provisions in the Protection of Freedoms Act 2102, it combines the previous functions of the Criminal Records Bureau and the Independent Safeguarding Authority for England, Wales and Northern Ireland, in a "scaled-back regime focused only on roles working most closely with vulnerable groups".

    The DBS's website moved on 27 March 2013 to www.gov.uk/dbs. Information and guidance specifically about DBS (criminal record) checks, online tracking, DBS Adult First, referral form and guidance, and barring information can be accessed via www.gov.uk/disclosure-barring-service-check.

    To be kept up to date with DBS changes, you can register for updates at tinyurl.com/lxsmkpx.

    The DBS can be contacted by phone on 0870 90 90 811 for information about DBS (criminal record) checks, and 01325 953 795 for DBS referrals and safeguarding matters.

    The directory of registered umbrella bodies can be accessed via tinyurl.com/cron29m. The DBS is concerned that relatively few umbrella bodies have updated their details, and is encouraging all registered umbrella bodies to do so.

    Safeguarding provisions in Scotland, through the Protecting Vulnerable Groups scheme which came into effect on 28 February 2011, are not affected by the creation of the DBS.

    The Safeguarding Vulnerable Groups Act 2006 is at www.legislation.gov.uk/ukpga/2006/47/contents.
    The Safeguarding Vulnerable Groups (Northern Ireland) Order 2007 is at www.legislation.gov.uk/nisi/2007/1351/contents.
    The Protection of Freedoms Act 2012 and explanatory notes are at www.legislation.gov.uk/ukpga/2012/9/enacted.

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    DBS CRIMINAL RECORD CHECKS AND UPDATE SERVICE

    Updated 17/6/13. This information updates s.41.4 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    Since 1 December 2012, when the Disclosure and Barring Service (DBS) took over the functions of the Criminal Records Bureau in England and Wales, criminal record checks have been called Disclosure and Barring Service (DBS) checks.

    Information for both individuals and organisations about DBS checks is on the Gov.uk website via tinyurl.com/a3bluau, with detailed information for organisations on the DBS website via tinyurl.com/amdyewf. The list of registered umbrella bodies can be accessed via tinyurl.com/cron29m.

    The DBS can be contacted by phone on 0870 90 90 811 for information about DBS checks.

    The sections below set out various changes that have been or are currently being implemented in relation to criminal record checks. The final major changes — the introduction of the online checking service, and the provision of certificates only to individual applicants and not to organisations — are in effect from 17 June 2013. To be kept up to date with DBS changes, you can register for updates at tinyurl.com/lxsmkpx.

    Changes in the application process
    Updated 13/6/13. This information updates s.41.4 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    From 17 June 2013, non-conviction information provided by police for a criminal record check will be based on the "workforce" the person is in, rather than the specific role or position.

    To accommodate this change, line 1 in the position applied for field (x61) on the DBS application form must show whether the person is in the child workforce (working/volunteering with children); adult workforce (working/volunteering with adults); child and adult workforce; or other workforce (for any position, such as a security guard, that does not involve working or volunteering with children or adults).

    Line 2 of x61 should include a description of the person's position, in up to 30 characters.

    In addition, because of changes in the way some old convictions and cautions have been shown on criminal record certificates since 29 May 2013, question e55 on spent and unspent convictions needs to be treated differently than it was before this date. For more on this see Removal of some old convictions and cautions from DBS certificates, below.

    Single (applicant-only) certificates
    Updated 13/6/13. This information updates s.41.4 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    From 17 June 2013, DBS certificates will be sent only to the individual applicant, and no longer also to the registered person (the employer/organisation or umbrella body which submitted the application). The purpose of this change is to allow the individual to review the certificate, and to dispute and make appropriate representations about the information in the certificate [or, presumably, withdraw their application for the job or volunteering role], without the information already having been seen by the organisation.

    This means that organisations will have to rely on the applicant providing their copy of the DBS certificate, rather than receiving it direct from the DBS or registered umbrella body. In the past, umbrella bodies have been responsible for examining certificates and contacting the organisation for whom they are obtaining certificates if they have any concerns. This important safety net will disappear, and each organisation will need to have someone trained in how to recognise fraudulent certificates and how to understand any conviction or other information.

    Applicant-only certificates have been brought in under s.79 of the Protection of Freedoms Act 2012, which inserts a new s.120AC into the Police Act 1997.

    Online update service / portability
    Updated 17/6/13. This information updates s.41.4 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    From 17 June 2013, individuals can choose to subscribe to a new DBS online update service when they apply for their next (or first) criminal record check. A subscription can only be started when the individual applies for the check, or by using the certificate number to join the service within 14 days of the certificate being issued. If the application is made through the DBS's eBulk service (for example, if it is made through an umbrella body which uses this service) the individual will not be able to join the update service when applying for the certificate, and will have to do so within 14 days of the certificate being issued.

    The DBS will keep subscribers' information up to date,and employers or volunteer-using organisations can carry out free, online, instant checks, called status checks, at any time, to see if any new information has come to light since the certificate was issued.

    This creates a "portable" disclosure that can be used for multiple jobs or roles, consisting of the original certificate, plus status checks whenever the person starts working or volunteering for a new organisation, changes role within an organisation, or needs to be re-checked under the organisation's provision for regular checks.

    A status check can be carried out only if the individual being checked has subscribed to the service. The organisation does not have to subscribe to the service or pay a fee to carry out the check, but it must:

    • have the applicant's consent either verbally or in writing (this can be one-off consent for a single check, or the employer can, if it wishes, ask the individual for ongoing consent);
    • see the original certificate to check it is the same type and level as the organisation is entitled to carry out (see Eligible, required, recommended?, below), make sure that the right checks have been carried out and see what, if any information was disclosed about the applicant;
    • check the applicant's identity (see Identity checking procedures, below);
    • check the name on the DBS certificate matches this identity;
    • note the DBS certificate reference number, the person's name and date of birth;
    • comply with the DBS code of practice, which includes having a policy on the recruitment of ex-offenders and making this available to the person. The DBS has model policy in its publications section at www.gov.uk/dbs.
    An online status check will give an instant result, either that no further information has been identified since its issue, or that the certificate is no longer current and a new check needs to be applied for to get the most up to date information.

    If a new check is applied for and the individual does not provide their certificate, the registered body (the organisation itself, or the umbrella body it uses) can ask DBS for a copy of it. But this can be done only if the individual is subscribed to the update service; the organisation has carried out a status check which revealed a change to the certificate and as a result the individual has applied for a new certificate; the DBS issued a new certificate more than 28 days previously; and the individual has not shown this certificate to the organisation.

    For employees, the annual subscription for the update service is £13. The employer can pay this directly, or can reimburse employees who pay. Such payment or reimbursement would be a taxable benefit, so legislation has been put in place to exempt the annual update payment or reimbursement from tax and national insurance, where the employee is engaged in regulated activity. Payment or reimbursement by the employer for standard and enhanced criminal record certificates is also exempt from tax and national insurance where applications for the certificate and the update service are made at the same time. Fees for criminal record checks on their own (not paid at the same time as an update subscription) paid or reimbursed by the employer do not fall within this legislation, as these payments would not be treated as taxable benefits anyway.

    For volunteers, the annual update subscription is free. The definition of volunteer is the same as for free DBS checks.

    A subscription lasts for 12 months from the date the certificate is issued or, if later, the date of the individual joined the subscription service. It can then be renewed annually.

    The DBS recommends that organisations encourage relevant staff and volunteers to subscribe to the update service when they are due for their next criminal record check (in line with the organisation's existing re-checking procedures). It also suggests that organisations review their employment and recruitment policies, to see how status checks can form a part of these processes. But the update service is not necessarily appropriate for everyone. It will be most useful for individuals who do, or are likely to do, similar roles over time for different organisations, or where the organisation has a policy of regularly checking that certificates are still current.

    Organisations are not obliged to use the update service. Even if an individual is registered with the service and the new role or job is of the same type and at the same level as covered by the current certificate, the organisation can require a complete new check rather than doing a status check. More importantly, the organisation should require a new check if the current certificate is for a dissimilar role or is for a different workforce (working with children rather than adults, or vice versa, or if the new role is for regulated activity and the current certificate does not include the relevant barred list check. So the DBS's publicity claim that "you may never need to do another check again" is unlikely to be accurate, and could mislead organisations and individuals into thinking that they never need to undertake a new check, or perhaps even that they don't need to do status checks.

    Detailed information about the update service, including guidance for individuals and organisations, is available via www.gov.uk/dbs. The DBS has a very clear, useful PowerPoint presentation, explaining the service and how it works for individuals and employers, at tinyurl.com/pw7avmy.

    The update service was brought in by s.83 of the Protection of Freedoms Act 2012, which inserted a new s.116 in the Police Act 1997.

    Removing some old and minor convictions and cautions from DBS certificates
    Updated 13/6/13. This information updates s.41.4 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    In a decision on 29 January 2013 relating to three cases, the court of appeal ruled that some aspects of criminal record checks, as then operating, were incompatible with the right to private life under article 8 of the European Convention on Human Rights. As a result of this decision, new rules came into effect on >29 May 2013, filtering certain old and minor convictions and cautions from DBS certificates.

    One of the court cases involved T, who had received two police warnings in relation to stolen bicycles when he was 11. (Cautions for under-18s are known as reprimands or warnings.) The cautions were disclosed on his CRB check when he applied for a job six years later that would have involved working with children, and again when he applied the following year for a sports studies course.

    The basis for his case was that cautions, unlike convictions, take place in private, and also that criminal record disclosures, by affecting employability, affect the person's ability to form relationships with others. Set against this are the legitimate aims of article 8 to protect employers, children and vulnerable adults, and to enable employers to assess the suitability of an individual for the work he or she will be doing. In its decision, the court of appeal said that "the statutory regime requiring the disclosure of all convictions and cautions relating to recordable offences [was] disproportionate to that legitimate aim". In relation to T, the court said it was "difficult to see the relevance of warnings received when he was a child to his suitability to be enrolled on a course and have contact with children when he was 18".

    Under the filtering rules that were put in place as a result of this decision, a conviction will not be included on a criminal record certificate if:

    • it is not a conviction for a specified offence as defined in s.4 of the order, such as sexual offending, violent offending and/or safeguarding); and
    • it is the person's only offence: and
    • it did not result in a custodial sentence: and
    • the person was aged 18 or over at the time of the offence and 11 years have elapsed since the date of the conviction; or the person was under 18 at the time of the offence and 5.5 years have elapsed since the date of the conviction.
    If a person has more than one offence, details of all their convictions will always be included in the criminal record certificate.

    A caution will not be included on the certificate if:
    • it is not on the list of specified offences; and
    • the person was aged 18 or over at the time of the caution and six years have elapsed since the caution; or the person was under 18 and two years have elapsed since the date of the caution.
    Organisations and umbrella bodies registered with DBS should ensure that applicants are aware that question e55 on the DBS application form, "Have you ever been convicted of a criminal offence or received a caution, reprimand or warning?" should be treated as if it asked "Do you have any unspent convictions, cautions, reprimands or warnings?"

    DBS information about filtering is at tinyurl.com/oxs9tjj.

    The filtering rules are in the Police Act 1997 (Criminal Record Certificates: Relevant Matters)(Amendment)(England and Wales) Order 2013, at www.legislation.gov.uk/uksi/2013/1200/contents/made;
    and the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment)(England and Wales) Order 2013 at www.legislation.gov.uk/uksi/2013/1198/contents/made.

    The court of appeal case that led to the new filtering rules was T, R (on the application of) v Greater Manchester Chief Constable & others. The judgment is at www.bailii.org/ew/cases/EWCA/Civ/2013/25.html.

    Types of check, and eligibility to carry them out
    Updated 13/6/13. This information updates s.41.4 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    As in the past, DBS checks can be carried out only where an organisation is eligible to do so under the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 and subsequent orders. These orders specify the positions, professions, offices, employment, other activities and licences where an individual can be asked about spent as well as unspent convictions, and where a check on their criminal record can be carried out. To be eligible for an enhanced check, the position must also be listed in regulations made under the Police Act 1997.

    Guide to eligibility, updated 14 February 2014 and available via tinyurl.com/kowmqtv, lists the positions etc which are eligible for standard and enhanced DBS checks. The organisation is legally responsible for ensuring it is eligible to ask the individual for a DBS check. It is unlawful for an organisation to carry out a check for which it is not eligible.

    The three levels of checks are:

    • Standard check: for specified licences, occupations and professions. The certificate contains details of spent and unspent convictions, cautions, reprimands and final warnings from the police national computer (PNC). Some information about old and minor convictions and cautions will not be included.

    • Enhanced check: for individuals carrying out certain activities or working in regulated activity with children or adults, applicants for gaming and lottery licences, and judicial appointments. The certificate contains the same information as a standard check, plus relevant information from police records held locally. Regulated activity in this context means activities currently defined as regulated activity, as well as activities which were previously defined as regulated under the Safeguarding Vulnerable Groups Act 2006, but have not been regulated since the act was amended from 10 September 2012 (such as being a trustee of a children's or vulnerable adults' charity).

    • Enhanced check with a children's and/or adults' barred list check: only available for individuals engaged in regulated activity with children or adults, and a small number of positions listed in Police Act regulations, such as prospective adoptive parents. The certificate contains the same information as an enhanced check, plus a check against the lists of people barred from work with children and/or adults. Regulated activity in this context means only activities currently defined as regulated.
    The clearest information I have seen about eligibility is the Volunteering England/NCVO information sheet on DBS checks, available via tinyurl.com/bc2jpc2. Although this is phrased in terms of volunteers, it applies in the same way to employees and other workers.

    The Protection of Freedoms Act 2012 is at www.legislation.gov.uk/ukpga/2012/9/enacted.
    The Police Act 1997 is at www.legislation.gov.uk/ukpga/1997/50/contents.

    The provision in s.112 of the Police Act 1997 for criminal conviction certificates (often called basic checks), providing information only about convictions that are "unspent" under the Rehabilitation of Offenders Act 1974, has never been implemented for England and Wales and continues to apply only in Scotland and Northern Ireland.

    Eligible, required, recommended?. The fact that an organisation is eligible to carry out a standard or enhanced DBS check for a particular position, activity etc does not necessarily mean that it is required to do so. At present, there is a statutory duty to carry out a check only if this is specified in legislation for specific sectors.

    Even for regulated activity with children or adults, where it is an offence for an organisation to offer such work to a person or allow them to undertake it if they are barred, there is no general statutory obligation to obtain an enhanced DBS check in order to find out whether the person is barred. However, this will change if a statutory duty to check that any person starting regulated activity is not barred is introduced.

    Clearly it is advisable to carry out an enhanced check with barred list check for any person who will be involved in regulated activity, to avoid the risk of engaging someone who is barred from such work.

    Where a person is not engaged in regulated activity and the organisation is eligible (but not required) to carry out a standard or enhanced (without barred lists) check, and the organisation does not do so, the organisation could be found to be negligent (in breach of its duty of care) if the individual subsequently causes harm and it turns out they had a criminal record that could have been relevant in appointing them. This is why funders and/or an organisation's safeguarding policy often require checks whenever it is possible to undertake them.

    In some sectors there is also a government or official recommendation (not requirement) that checks be carried out if the organisation is eligible to do so; for example the Charity Commission's recommendation that enhanced checks be carried out for trustees of children's and vulnerable adults' charities.

    But there is another view, that organisations should not automatically carry out a check on everyone who is eligible for one, and that carrying out checks unnecessarily can be a deterrent to volunteering. Advocates of this view say it should be up to the organisation to decide, based on a relevant risk assessment, whether there is adequate reason to carry out a check where it is eligible but not required to do so. It is important always to remember that many offenders of all types never come to the attention of the police, and DBS checks generally only reveal information about those who do. Other elements of good management — a good recruitment process, taking up references, proper induction, ongoing training, supervision, risk assessment — are ultimately more important than DBS checks.

    There is more about DBS checks, regulated activity and when checks are and are not required in the Home Office's Disclosure and barring supporting information pack (2nd edition), published on 16 October 2012 and available via tinyurl.com/atbsvhd, and in the resources listed under Regulated activity, below.

    Charge for DBS checks
    Updated 22/1/13. This information updates s.41.4 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    The charge for standard checks remains £26, and £44 for enhanced checks with or without barred list checks.

    Checks for volunteers remain free of charge. "Volunteer" is defined in the Police Act 1997 (Criminal Records) Regulations 2002 as "any person engaged in an activity which involves spending time, unpaid (except for travel and other approved out of pocket expenses), doing something which aims to benefit some third party and not a close relative."

    To qualify for a free DBS check, the applicant must not benefit directly from the position the DBS application is being submitted for. The applicant must not receive any payment (except for travel and other approved out of pocket expenses), and must not be on a work placement, on a course that requires them to do this job role, or in a trainee position that will lead to a full time role or qualification.

    Identity checking procedures
    Updated 22/1/13. This information updates s.41.4 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    F 31 August 2012, all bodies registered with the DBS must comply with revised identity checking procedures for England and Wales. The new procedures do not apply in Scotland, and Access NI's list of identity checking documents required in Northern Ireland, at tinyurl.com/anblhyo has been reviewed and is slightly different from the DBS list.

    The DBS's revised and enhanced identification checking guidelines can be accessed via tinyurl.com/ajcobbs.

    For DBS identity checking there are three routes, and three groups of documents that can be provided. The routes and groups are explained below. More detailed information, such as about external identity validation, is available in the ID checking guidelines, or from the DBS helpline or from DBS-registered umbrella bodies that carry out DBS checks on behalf of organisations which are not themselves registered with the DBS.

    The three routes are, briefly, route 1 for applicants who can provide a 'group 1' document such as a passport or UK photo driving licence plus two other specified documents; route 2 for UK or EEA applicants who cannot provide a group 1 document but can provide three other specified documents and have their identity confirmed by an external validation service; route 3 for UK nationals only where routes 1 and 2 have not proved successful.

    • Route 1 must be the starting point for all applicants.

      UK nationals, and EEA nationals resident in the UK for more than five years. If the applicant provides a group 1 document, they must then provide two further documents from any of the groups. (Details of the groups are below.) One of the documents must confirm the applicant's current address. If a group 1 document cannot be provided, use route 2.

      EEA nationals (other than UK nationals) resident in the UK for five years or less. The only acceptable group 1 documents are a current passport, or current UK photo driving card. If one of these is provided, two more documents from any group are required. One of the documents must confirm the applicant's current address. If a group 1 document cannot be provided, route 2 can be used if the registered body is satisfied there is a valid reason for doing so.

      Non-UK/non-EEA nationals can be validated only through route 1. They must provide one group 1 document plus two documents from any group, with one of the three documents confirming current address. There is considerable concern within the voluntary sector about the implications of this for refugees and asylum seekers who might not have these documents and thus will not be able to volunteer or be employed in roles which require CRB checks.

    • Route 2 can be used only if a UK/EEA applicant cannot produce a group 1 document. They must provide one document from group 2a and two further documents from group 2a or 2b, one of which must verify their current address. The registered body conducting the ID check must then use an external identity validation service to check the applicant against their records to establish the applicant's name and "living history footprint". An applicant who fails the external validation check must be fingerprinted [see below].

      For registered bodies that have not yet identified an external validation service, the DBS suggests doing an internet search, and also says it is aware that Call Credit Group, Equifax, Experian and GB Group are working towards the provision of ID validation services tailored for DBS purposes. Some major voluntary sector umbrella bodies, such as the CCPAS disclosure service (via www.ccpas.co.uk/disclosure.html), have also set up ID verification services which can be used even by organisations which do not carry out DBS checks through them.

    • Route 3 can be used only if route 1 has been exhausted and the registered body has tried to have an external validation check. Route 3 involves an in-depth discussion with the applicant about their situation, plus provision of a UK or Channel Islands birth certificate, plus one document from group 2a, plus three further documents from group 2a or 2b, one of which must verify their current address.

    • Fingerprinting. If an applicant provides the route 2 documents but fails the external validation check, or if they are unable to provide the route 3 documents, question W59 on the disclosure application form should be marked 'no', and the applicant will be asked to give consent to have their fingerprints taken. This will require attendance at a police station at a specified time, and may delay the overall disclosure application process. There is no charge for the fingerprinting.
    The introduction of the routes was accompanied by a tightening up on the rules on ID documents, with 21 documents, such as national insurance cards, TV licences, and Disclosure Scotland and Criminal Records Bureau certificates, ceasing to be acceptable. This was to reduce use of documents that are easily obtained or forged and to make it more difficult for applicants to conceal a change of name.

    Documents that remain acceptable are divided into three groups, described and with helpful explanations about the various documents and how to check them, is in the DBS's identification checking guidelines, available via tinyurl.com/ajcobbs.

    All documents must be originals. Photocopies are not acceptable, or documents printed from the internet such as bank statements or utility bills. At least one document must show the applicant's date of birth.
    • Group/table 1: Primary trusted identity credentials
      Any current valid passport.
      UK biometric residence permit.
      UK, Isle of Man or Channel Islands current driving licence (can be full or provisional, but must be photo card with counterpart except for Jersey).
      UK or Channel Islands birth certificate issued at the time of birth (full or short form, including those issued by UK authorities overseas such as embassies, high commissions and HM forces).

    • Group/table 2a: Trusted government/state issued documents
      Old style paper version of UK driving licence.
      Non-UK photo driving licence, can be used for up to 12 months from the date the person entered the UK provided it is still valid.
      UK or Channel Islands birth certificate issued after the time of birth by the general register office or relevant authority.
      UK or Channel Islands marriage or civil partnership certificate.
      UK or Channel Islands adoption certificate.
      UK HM forces ID card.
      UK or Channel Islands firearms licence.

    • Group/table 2b: Financial and social history documents
      Must have been issued in the last 12 months
      UK or EEA mortgage statement.
      UK financial statement such as pension, endowment or ISA.
      UK or Channel Islands P45 or P60 statement.
      UK or Channel Islands council tax statement.
      Must have been issued in the last 12 months and must still be valid
      UK work permit or visa.
      Must have been issued in the last 3 months
      UK, Channel Islands or EEA bank or building society statement.
      UK or EEA credit card statement.
      UK utility bill (but not a mobile phone bill).
      Benefit statement such as child benefit or pension.
      Document issued by UK or Channel Islands central or local government, government agency or local authority giving entitlement (such as Department for Work and Pensions, Employment Service, HMRC).
      Issued any time, provided it is still valid
      Bank or building society account opening confirmation letter.
      EU national ID card.
      UK or Channel Islands cards carrying the PASS (national proof of age standards scheme) accreditation logo.
      Only for non-UK and non-EEA nationals residing outside the UK at the time of application
      Valid letter of sponsorship from future employment provider.
      Only for UK nationals, 16-19 years old in full time education
      Letter from head teacher or college principal; only acceptable in exceptional circumstances if other documents cannot be provided.
    The DBS's guidance explains how to check the various documents, and explains what a registered body should do if it suspects false identity or documents.

    Minimum age
    Updated 6/9/12. This information updates s.41.4 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    From 10 September 2012 s.80 of the Protection of Freedoms Act 2012 introduces a minimum age of 16 for an individual applying for a disclosure, and 18 for a registered person or countersignatory for a registered body. Prior to this there was no minimum age limit for applying for a disclosure, or for countersignatories for registered bodies or registered persons who are individuals rather than organisations (for example a self-employed person who employs people in the course of their business).

    New category of person eligible for enhanced certificate
    Added 6/9/12. This information updates s.41.4 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    From 10 September 2012 enhanced DBS checks can be undertaken for a person aged 16 or over, who is a member of the household of another person who works closely with children (including regulated activity with children), where both of the persons live on the same premises as the work takes place. This might include, for example, the spouse of a boarding school manager when both the boarding school manager and the spouse live on site at the school.

    This change is brought in by reg.10 of the Police Act 1997 (Criminal Records)(Amendment No.2) Regulations 2012.

    Disclosure of police information
    Added 6/9/12. This information updates s.41.4 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    From 10 September 2012, chief officers of police must use the test of "reasonably believe to be relevant" rather than "might be relevant" when considering the release of approved information on the criminal record certificate. In addition, chief officers should take account of new statutory guidance when making assessments about the release on relevant non-conviction information on certificates.

    These changes are in s.113B of the Police Act 1997, as amended by the Protection of Freedoms Act 2012 s.82.

    Additional (brown envelope) information
    Added 6/9/12. This information updates s.41.4 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    Police forces have been obliged by law to disclose relevant information (known as additional information or "the brown envelope") to the registered body only. This is information which does not show on the applicant's certificate.

    From 10 September 2012, this information will not be provided by the police for the DBS to send to the organisation. However the police will still keep their right, using their common law powers, to pass such information to a potential employer where they consider it justified and proportionate.

    Independent review of information
    Added 6/9/12. This information updates s.41.4 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    From 10 September 2012, individuals have a new right to apply in writing to an independent monitor to request a review of whether information released as approved information is relevant and ought to be included on the DBS enhanced certificate. In addition, parties other than the DBS check applicant will be able to dispute the accuracy of information on a certificate.

    This is in s.117A of the Police Act 1997, as amended by the Protection of Freedoms Act 2012 s.82.

    Sexual offences
    Updated 21/1/13. This information updates s.41.4 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    From 1 October 2012, men convicted of homosexual offences prior to the decriminalisation of consensual gay sex in 1967 can apply to have such convictions deleted from the police national computer. Such convictions will then no longer show up as a sexual offence on DBS checks.

    This change is brought in by ss.92-101 of the Protection of Freedoms Act 2012 and the Protection of Freedoms Act (Relevant Official Records) Order 2012.

    Go back to contents
    Go to archived items about safeguarding (VSLH3 chapter 41)


    CRIMINAL RECORD CHECKS FOR PEOPLE FROM OVERSEAS

    Added 13/6/13. This information updates s.41.4.3 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    Potential employees or volunteers from overseas can be asked to obtain a criminal record check or "certificate of good conduct" from the overseas country. In some cases, it may be possible for the organisation to obtain this check through the relevant embassy in the UK, if the individual gives consent.

    Many countries have provided details of how to apply for certificates of good conduct and/or criminal record certificates. These details are on the Disclosure and Barring Service website at tinyurl.com/loean7t.

    The DBS recommends that organisations continue to check with the relevant embassy, as processes for obtaining these checks and certificates can change. Contact details for embassies in the UK are on the Gov.uk website at tinyurl.com/b5aargs.

    With the introduction of applicant-only certificates in June 2013, the DBS now sends criminal record certificates only to UK addresses. Applicants without a UK address must provide a "care of" address in the UK, which can, if they wish, be the employer or registered body. On the application form, section b line 32 should be the UK address with c/o or 'care of' in front of the first line; line 37 "at address since" should be the date the application form is completed; in section c "other addresses" should be the current overseas address; and on line 43 the "to" date should be the same as line 37.

    Go back to contents
    Go to archived items about safeguarding (VSLH3 chapter 41)


    REGULATED ACTIVITY

    Updated 26/5/13. This information updates ss.41.5 & 41.6 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    From 10 September 2012 the Protection of Freedoms Act ss.64-66 (and sch.7 for Northern Ireland) amended the Safeguarding Vulnerable Groups Act 2006 and equivalent Northern Ireland legislation to reduce the scope of regulated activity in relation to both children and adults.

    The information below is taken primarily from the Disclosure and Barring Service (DBS) website at tinyurl.com/crq8p4h. Further information is in the legislation, the explanatory notes to the Protection of Freedoms Act, and guidance listed below.

    Separate leaflets for England, Wales and Northern Ireland summarising the September 2012 changes are available on the DBS website via tinyurl.com/b9h9uzl. To be kept up to date with changes, you can register for DBS updates at tinyurl.com/lxsmkpx.

    Although fewer activities are now defined as regulated, it remains an offence for a barred individual to seek or undertake regulated activity, whether paid or unpaid, with children or adults, or for an organisation knowingly to allow a barred person to engage in regulated activity.

    There is a statutory obligation for some employers, before engaging an individual in a regulated activity, to obtain an enhanced Disclosure and Barring Service (formerly CRB) check in order to find out whether the person is barred from regulated activity with, as applicable, children or adults. But at the moment, there is no general statutory obligation for most employers to undertake such checks — but if they do not carry out a check, and subsequently offer work (paid or unpaid) to a person who is barred, they will have committed an offence. For more about the difference between being eligible for a DBS check and being required to undertake a check, see Eligible. required, recommended? above.

    The Safeguarding Vulnerable Groups Act 2006 is at www.legislation.gov.uk/ukpga/2006/47/contents.
    The Safeguarding Vulnerable Groups (Northern Ireland) Order 2007 is at www.legislation.gov.uk/nisi/2007/1351/contents.
    The Protection of Freedoms Act 2012 and explanatory notes are at www.legislation.gov.uk/ukpga/2012/9/enacted.

    Regulated activity with children
    The new definition of regulated activity relating to children applies from 10 September 2012 to individuals undertaking unsupervised activities, or work in a specified place, or health care or personal care. It also applies to registered childminders, registered foster carers, and a person involved in the day to day management or supervision of any person engaging in regulated activity. The definition is set out in sch.4 of the Safeguarding Vulnerable Groups Act 2006, as amended by the Protection of Freedoms Act 2012 s.64.

    A summary of the key changes in relation to regulated activity with children is available on the DBS website at tinyurl.com/llzjwd4.

    The definition of a child for the purpose of regulated activity is still someone under the age of 18. The previous exceptions to this also still apply, for example an individual who is aged under 18 but is in employment.

    • Unsupervised activities are teaching, training, instructing, caring for or supervising children; providing advice/guidance on wellbeing; or driving a vehicle solely for children, if the activity is not supervised.

      Supervision means such day to day supervision as is reasonable to protect any children concerned. Following a consultation in June and July 2012, the Department for Education published statutory guidance on 10 September 2012 to describe what an organisation should consider when determining whether an individual is supervised to a reasonable level for the role. Its key points are that if work with children is supervised by a person who is in regulated activity, the supervision is regular and day to day, and the supervision is "reasonable in all the circumstances to ensure the protection of children", then work which would otherwise be a regulated activity is supervised, and therefore not regulated. If it is not a regulated activity the organisation can ask for an enhanced DBS check, but the DBS will not check the children's barred list.

      Statutory guidance: Regulated activity (children) — supervision of activity with children which is regulated activity when unsupervised can be accessed via tinyurl.com/bc97nnu. The guidance includes examples, and steps to take in deciding whether a new worker (or an existing worker moving into a new role) will be supervised to such a level that the new worker is not in a regulated activity.

      Supervision and regulated activity, a briefing published by the Safe Network in March 2013, is intended for voluntary and community organisations who are considering asking for DBS checks for some posts or roles and need to determine whether work is unsupervised (and is thus eligible for an enhanced check with children's barred list check) or is supervised to such an extent that it is eligible only for an ordinary enhanced check or in some cases possibly only a standard check. The briefing is at tinyurl.com/c8jdune.

    • Specified places. Paid work with the opportunity for contact with children in specified establishments, such as schools, nurseries and children's homes, is always regulated activity, even if it is supervised. The only amendment to the pre-September 2012 list is that children's hospitals are no longer a specified establishment.

      Work carried out by volunteers supervised to a reasonable level, in accordance with the statutory guidance on supervision, in these establishments is not regulated activity.

    • The frequency test. Work involving an unsupervised activity anywhere, or unsupervised or supervised in a specified establishment is only regulated activity relating to children if done regularly. Regularly means carried out by the same person frequently (once a week or more often), or on four or more days in a 30-day period, or in some cases overnight between 2am and 6pm.

    • Health care. Healthcare for children is regulated activity when provided by, or under the direction or supervision of, a regulated healthcare professional. This is regulated activity even if the activity is only carried out once.

    • Personal care. Personal care for children is regulated, even if the activity is only carried out once, if it involves hands-on physical assistance with washing and dressing, eating, drinking and toileting; prompting and supervising a child with any of these tasks because of their age, illness or disability; or teaching someone to do one of these tasks.

    • Specified positions.The list of specified positions as set out in sch.4 of the Safeguarding Vulnerable Groups Act 2006 remains in place for Wales, but has been completely removed in relation to England. So no one in England is undertaking regulated activity simply by being, for example, a trustee of a children's charity or in any other formerly specified position. (For more about charity trustees, see Charity Commission guidance on safeguarding.)

    • What is no longer regulated. Since 10 September 2012, the following are no longer regulated activities in relation to children: giving legal advice; treatment or therapy unless it meets the new narrow definition of healthcare as being directed or supervised by a healthcare professional; any activity supervised at a reasonable level, except for supervised paid staff working in a specified establishment; volunteers supervised at a reasonable level; and accessing a database established under the Children Act 2004.

      Children's hospitals are no longer specified establishments.

      Being in a specified position is no longer regulated activity in England.

      Even if an activity has ceased to be regulated, organisations will normally continue to have access to enhanced DBS checks for people undertaking that activity. However, as the person will not be undertaking regulated activity, the DBS will not check its lists of people barred from undertaking regulated activity with children or adults.

    • Still not classed as regulated. The following are still not classed as regulated activity in relation to children: family arrangements and personal, non-commercial arrangements; the peer exemption (activity by a person in a group assisting another member of the group); and incidental contact where the activity is not being provided for children and the presence of a child or children is unforeseen.

    Regulated activity with adults
    From 10 September 2012 the new definition of regulated activity no longer uses the word "vulnerable adult" in relation to regulated activity. The definition focuses on the activities themselves, not the recipient. If an activity defined as regulated is needed by any adult, that adult is considered vulnerable at the point of receiving the activity, but is not considered as a vulnerable adult at other times. So for the purposes of safeguarding, an adult is not vulnerable simply by virtue of being disabled or elderly.

    Because the focus is on activities received by the adult, not on where they take place, the specified establishment (care home) has been removed.

    The frequency test has also been removed. An individual who carries out regulated activity with an adult even once is carrying out a regulated activity.

    An adult continues to be defined as a person aged 18 years of age or older.

    Regulated activities in relation to adults are:

    • healthcare for adults provided by, or under the direction or supervision of, a regulated health care professional;
    • personal care for adults involving hands-on physical assistance with washing and dressing, eating, drinking and toileting; prompting and supervising an adult with any of these tasks because of their age, illness or disability; or teaching someone to do one of these tasks;
    • provision by a social care worker of social work which is required in connection with any health services or social services;
    • assistance with an adult's cash, bills or shopping because of their age, illness or disability arranged via a third party;
    • assisting in the conduct of an adult's own affairs under a formal appointment;
    • conveying adults for reasons of age, illness or disability to, from or between places where they receive healthcare, personal care or social work arranged via a third party;
    • being in a role which includes the day to day management or supervision of any person engaging in regulated activity.
    Regulated activity continues to exclude personal, non-commercial relationships, and any activity carried out in the course of family relationships. Being a trustee of a charity which carries out regulated activity with adults is no longer, in itself, a regulated activity.

    The Department of Health issued on 7 August 2012 a very useful short briefing on the new rules, giving examples of what they mean in practice. It is available via tinyurl.com/crg8scg. More information about regulated activity with adults is available on the DBS website via tinyurl.com/aujsz64.

    Controlled activity [not]
    The Safeguarding Vulnerable Groups Act 2006 ss.21-23 provided for controlled (but not regulated) activity in ancillary posts or posts involving access to sensitive information relating to children or adults, with organisations obliged to check whether individuals who would be involved in such work were barred from engaging in regulated activities. These provisions were never implemented, and from 10 September 2012 have been repealed by the Protection of Freedoms Act 2012 s.68.

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    DBS BARRED LISTS AND REFERRALS

    Updated 22/1/13. This information updates ss.41.7 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    The safeguarding changes introduced by the Protection of Freedoms Act 2012 did not change the duty to refer, except to make the referral to the Disclosure and Barring Service rather than the Independent Safeguarding Authority. If an organisation provides regulated activity with children or adults and a member of staff or volunteer is removed from the activity because they have harmed a child or adult (or there is a risk of harm), or the person would have been removed from the activity if they had not left the organisation, the organisation must inform the DBS. The DBS's detailed referral guidance, including the procedure for referrals, can be accessed via tinyurl.com/d77heaj. It is an offence for a body which has a statutory duty to refer to fail to do so without having a reasonable excuse.

    Employers and organisations which do not have a duty to refer, parents/private employers, and members of the public may — but do not have to — refer information to social services or the police, who will investigate and if appropriate refer it on to the DBS.

    Following referral, decisions about inclusion on the children's barred list (which replaced the Protection of Children Act list and list 99) and the adults' barred list (which replaced the Protection of Vulnerable Adults list), are made by the DBS. Information about whether someone is barred is included in an enhanced DBS check for a person who will carry out regulated activity, but is not included in other enhanced or standard checks.

    From 10 September 2012 ss.67 and 70-72 of the Protection of Freedoms Act 2012 changed some aspects of barring decisions. Most people are now barred from working with children and/or adults only if the DBS has reason to believe they have engaged, or (at the time at which they were barred) might in future engage in regulated activity. In addition, the DBS now has greater powers to review a person's inclusion on a barred list.

    Transitional provisions in articles 8-10 of the Protection of Freedoms Act 2012 (Commencement No.3) Order 2012 allow any person who was on a barred list on 10 September 2012 to apply to the DBS to be removed from the list(s) if they would not satisfy the new barring test.

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    REHABILITATION PERIODS FOR OFFENDERS

    Added 1/4/14. This information updates s.41.8 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    The Rehabilitation of Offenders Act 1974 sets out a rehabilitation period during which a conviction is said to be unspent; after this period, it is said to be spent.

    For work (whether paid or unpaid) with children or with adults in vulnerable circumstances, or for certain other posts as defined in exception orders to the Rehabilitation of Offenders Act, all convictions have to be disclosed, whether spent or unspent. For posts which are not listed in the exception orders, only unspent convictions have to be disclosed, and only if the employer asks about them; for these ordinary jobs (not working with children etc), a spent conviction in effect never happened and does not need to be revealed, even if the employer asks about convictions.

    Convictions for the most serious offences never become spent, so always have to be declared for any type of work.

    The rules on rehabilitation periods (the period while the conviction remains unspent) changed significantly on 10 March 2014. Instead of being a fixed period from the date of conviction, it is a now the period of the sentence, plus a buffer period following the end of the sentence. For example the rehabilitation period for an adult who receives a custodial sentence of 6-30 months was previously 10 years from the date of conviction. Since 10 March 2014, it is the period of the sentence plus a four-year buffer period. So the rehabilitation period for a custodial sentence of 6-30 months could be as short as 4.5 years (for a six-month sentence plus four-year buffer period), and even at its longest would only be 6.5 years (for a 30-month sentence plus four-year buffer period).

    The changes are retrospective, so that existing convictions will become spent according to the new rehabilitation periods. Anyone treated as rehabilitated for the purposes of the act before 10 March 2014 will continue to be treated as such.

    A summary of the changes is on the HR Bullets website at tinyurl.com/p2ehsmg. Detailed guidance from the Ministry of Justice for convictions in England and Wales, including a chart with all types of custodial and non-custodial sentences and the new buffer periods for both adults and young people, is on the Gov.uk website at tinyurl.com/jvwq583. This guidance includes, on page 3, links for how the Rehabilitation of Offenders Act applies in Scotland and Northern Ireland.

    Different rules apply to convictions in immigration and nationality cases.

    The changes in rehabilitation period are in part 3 chapter 8 (ss.139-141) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which is at www.legislation.gov.uk/ukpga/2012/10/section/141. The commencement order is at www.legislation.gov.uk/uksi/2014/423/contents/made.

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    INFORMATION, DATA PROTECTION
    AND INTELLECTUAL PROPERTY


    FREEDOM OF INFORMATION AND ENVIRONMENTAL INFORMATION RESOURCES

    Added 28/4/13. This information updates s.43.2 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    The Freedom of Information Act 2000 (FOIA) provides a general right of access, although with significant exceptions, to information held by public authorities as defined by the act, and by bodies designated as a public authority for the purposes of the FOIA because they exercise functions of public nature. The Freedom of Information (Scotland) Act 2002 (FOISA) is similar.

    Information about the FOIA is on the website of the Information Commissioner's Office at www.ico.gov.uk. There are separate sections for organisations which are or may be subject to the act, and for individuals or organisations who want to use the act to obtain information from public authorities. The ICO's plain English guide to freedom of information and its specialist guidance can be accessed via tinyurl.com/dyndhwc.

    The ICO has also issued a plain English guide to the Environmental Information Regulations 2004, which can be accessed along with specialist guidance at tinyurl.com/bt8ed22.

    For information about the legislation in Scotland, the website of the Scottish information commissioner is at www.itspublicknowledge.info.

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    FREEDOM OF INFORMATION ACT: CONTRACTS WITH PUBLIC AUTHORITIES

    Updated 28/4/13. This information updates s.43.2 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    The Ministry of Justice confirmed in January 2011 that although some specific named charities are covered under the Freedom of Information Act 2000 (FOIA), there is no intention to extend the FOIA to all charities, or to all contractors that provide services on behalf of public authorities.

    Instead, the emphasis is on ensuring appropriate requirements are included in all contracts between public bodies and private or voluntary sector providers of goods and services. In its report on the Freedom of Information Act published on 3 July 2012, the House of Commons justice select committee said, "The right to access information must not be undermined by the increased use of private providers in delivering public services.... We remind all concerned that the right to access information is crucial to ensuring accountability and transparency for the spending of taxpayers' money, and that contracts for private or voluntary sector provision of public services should always contain clear and enforceable obligations which enable the commissioning authority to meet FOI requirements."

    This comment is in s.8 of the report, which covers the application of FOI to outsourced public services. The report is at tinyurl.com/cvu7vlb.

    In August 2012 the House of Commons public accounts committee expressed concern about commercial confidentiality being used as an inappropriate reason for non-disclosure of full information about contracts between public bodies and other providers. It recommended that the Cabinet Office should set out policies and guidance for public bodies to build full information requirements into their contractual agreements, in a consistent way. This report, Implementing the transparency agenda, can be accessed via tinyurl.com/btkabyt.

    In a speech to the Labour party conference on 3 October 2012, Sadiq Khan, the shadow justice secretary, said that a Labour government would seek to extend the act to cover delivery of public services by private and voluntary sector providers: "For the first time, FOI will cover the delivery of public services by private companies. This includes our prisons, our schools and our health service. Public private or voluntary, subjected to the same disinfecting transparency of FOI.".

    In Scotland, following consultation in 2010, the Scottish government said it would not implement proposals to extend the FOI (Scotland) Act 2002 (FOISA) to cover contractors running specified services on behalf of public bodies. However, it announced on 16 January 2013 that the act will be extended to cover arm's length bodies established by local authorities to provide cultural, sports and leisure activities to the public. It is intended that this will be the start of a staged process extending FOI coverage to other bodies created by local authorities. The January press release can be accessed via tinyurl.com/ajyc88p.

    It looks increasingly likely that in both England/Wales and Scotland, private and voluntary sector providers of goods and services to public authorities will become subject to freedom of information requirements at some point in future, either by the legislation being extended to include them, or by public authorities being required by statute or good practice guidance to include disclosure obligations in their contracts with providers. It is quite possible that the requirements will be different in England/Wales than in Scotland.

    Even if an organisation is not subject to FOIA or FOISA, information provided to a public body, for example as part of contract tender documents or monitoring of services, may need to be disclosed by the public body in response to a FOIA or FOISA request for information. And in some very specific cases, a court might find that a charity providing services on behalf of a public body is itself directly subject to the FOIA.

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    DATA PROTECTION RESOURCES

    Updated 23/2/14. This information updates s.43.3 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    Protecting data, protecting people: A guide for charities is a detailed introduction to data protection for charities and other voluntary organisations, published by Charity Finance Group on 30 April 2013 and written in association with the Information Commissioner's Office and Bates Wells and Braithwaite solicitors. It includes a list of 27 questions charities must ask to ensure they comply with the law, and case studies illustrating the law and good practice. It can be accessed on the CFG website via tinyurl.com/cchr29g.

    Less detailed, but providing an interesting summary of good practice and areas for improvement in charities, are the Information Commissioner's Office's Findings from ICO advisory visits to 33 community service organisations (mostly small and medium charities providing services to individuals within their local community) and Findings from 32 advisory visits to 32 charitable organisations (larger charities). Both published on 6 June 2013, these five-page reports highlight issues from the first year of advisory visits carried out by the ICO.

    Both sets of visits found that attention needed to be given to annual refresher training; retention/disposal schedules; better password controls; a clear-desk policy and checks to be sure data is being stored securely; encryption; procedures to prevent unauthorised removal of personal data on portable media; remote working procedures; secure fax or printing procedures; and robust procedures for controlling access to personal data for new starters, those moving to different positions within the organisation and those leaving it.

    The ICO commented, "Of particular relevance is the high degree to which charities rely on volunteers to deliver services. This presents a particular set of challenges due to the potential for high turnover of staff and difficulties in ensuring that volunteers are aware of and comply with their responsibilities in relation to data protection."

    The two reports, along with information about how to request an advisory visit, are at tinyurl.com/ct9694a.

    Similar reports were published on 5 and 14 February 2014 on advisory visits to fostering and adoption agencies and to social housing organisations. These are at tinyurl.com/o3kgl5j and tinyurl.com/o75ehho.

    The Northern Ireland Council for Voluntary Organisations (NICVA) issued in August 2013 a guide to data protection, as part of its good practice series. NICVA makes the point that its guide links to ICO publications but is not endorsed by the ICO. It is at tinyurl.com/mpgk9gw.

    The Information Commissioner's Office provides detailed information about the Data Protection Act 1998 and related regulations at www.ico.gov.uk. New or recently revised ICO resources include:

    • Subject access code of practice: Dealing with requests from individuals for personal information, August 2013. Explains individuals' rights to subject access and organisations' legal responsibilities, including how to deal with requests involving other people's information. At tinyurl.com/btmaefa.

    • Guidance on many aspects of online security, covering social networking and other aspects of online safety, is at tinyurl.com/oyr4crd. This includes a link to the much more detailed Social networking and online forums: When does the DPA apply?. This emphasises that an individual is exempt from having to comply with data protection law when posting other people's personal data online in a purely personal capacity. But if the person posting the data is representing an organisation or promoting their own business interests, they are subject to the Data Protection Act — even if they are posting the data on their own social networking pages.
    Voluntary sector data protection expert Paul Ticher provides free or low-cost webinars (internet seminars) on data protection. Topics scheduled from February to June 2014 were a data protection overview, and events on data protection in relation to membership, supporters and fundraising; human resources; data sharing; cloud services; and volunteers. Details and registration are at www.paulticher.com. Paul also provides a data protection support service for voluntary organisations; details are on his website.

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    CONSULTATIONS ON ICO STRATEGY AND PRIORITIES

    Added 23/2/14. This information updates s.43.3 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    Increased public awareness about data protection issues has led to a rapid rise in enquiries to the Information Commissioner's Office, so it consulted from 18 December 2013 to 31 January 2014 on a new approach to how it manages these enquiries, concerns and complaints. In order to prioritise its work, the ICO intends to encourage individuals to engage directly with the organisation they are complaining about, so the ICO can concentrate on investigating complaints against organisations which have serious or repeat complaints made against them, or where there is a clear public benefit in the ICO's direct involvement. These changes were expected to come into effect on 1 April 2014.

    The ICO also consulted until 7 February 2014 on its strategic plan, Looking ahead, staying ahead: Towards a 2020 vision for information rights.

    Documents for both consultations are at tinyurl.com/ox7t8hn.

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    "BRING YOUR OWN DEVICE" POLICIES AND PROCEDURES

    Added 23/2/14. This information updates s.43.3 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    The rapid development of smartphones and tablets alongside laptops, memory sticks and other digital equipment, along with increased working from home and working on the move, are not being matched by corresponding changes in organisations' data protection policies and procedures — even though the organisation is responsible for work-related data, regardless of whose computer or other device it is on.

    Such policies and procedures are often called BYOD (bring your own device), and should cover how personal information stored for work should be looked after on personal devices, and the security vulnerabilities and other data protection concerns that can arise when organisations permit staff — whether employees or volunteers — to connect their personal devices to the organisation's IT systems or to use work-related data on their own devices.

    Bring your own device (BYOD) is a straightforward 11-page guide issued by the Information Commissioner's Office in March 2013, at tinyurl.com/p7zfc2t. Any organisation which does not have a clear BYOD policy should read this.

    The need for such policies was highlighted by the ICO in October 2013, after a Royal Veterinary College employee lost their camera, which included a memory card with the passport images of six job applicants. At the time of the loss, the college had no procedures for dealing with work-related personal data stored on personal devices. The college was not fined, but had to give an undertaking to put appropriate procedures in place. The ICO's news release on this case, with a link to the undertaking, is at tinyurl.com/o25jhx9.

    In its news release, the ICO highlighted the key issues organisations need to be aware of when allowing staff to use personal devices at work.

    • Be clear with staff about which types of personal data may be processed on personal devices and which may not.

    • Use a strong password to secure your devices.

    • Enable encryption to store data on the device securely.

    • Ensure that access to the device is locked or data automatically deleted if an incorrect password is input too many times.

    • Use public cloud-based sharing and public backup services, which you have not fully assessed, with extreme caution, if at all [ICO's emphasis].

    • Register devices with a remote locate and wipe facility to maintain confidentiality of the data in the event of a loss or theft.
    A more detailed summary of the ICO's BYOD recommendations — but nowhere near as detailed as the code of practice — is in "Make it your organisation's new year resolution to have a clear personal device at work policy", issued on 8 January 2014. This is at tinyurl.com/onrny28 and is in five short sections: ensure devices are secure; ensure data transfers are secure; retain control; have an 'end of contract' policy; and have a clear acceptable use policy.

    A useful article from BrookStreet des Roches Solicitors, "How can you and your organisation benefit from a bring your own device policy?", was published on 21 January 2014. It is at www.bsdr.com/data-protection-briefing.aspx.

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    DATA PROTECTION AND TEMPORARY WORKERS

    Added 23/2/14. This information updates s.43.3 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    Following four data breaches at Great Ormond Street Hospital for Children NHS Foundation Trust, the Information Commissioner's Office issued a warning on 21 November 2013 about the importance of ensuring temporary and agency staff who regularly handle personal information receive adequate data protection training.

    The breaches involved letters containing information about the treatment of patients being sent to the wrong address. The ICO's investigation found that three of the incidents related to the work of temporary staff who had not received adequate data protection training, despite their role routinely involving the handling of personal information. In addition, there were no procedures to check whether letters were addressed to the correct recipient before sending.

    As with the Royal Veterinary College [see article above] the foundation trust was not fined but had to give an undertaking to put appropriate procedures in place. The ICO's news release, with a link to the undertaking given by the hospital, is at tinyurl.com/ktkaf3b.

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    EU REFORM OF DATA PROTECTION LAW

    Updated 23/2/14. This information updates s.43.3 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    The UK's data protection legislation is intended to implement the EU Data Protection Directive, but the Data Protection Act 1998 has been challenged on the grounds that it does not properly implement the directive. EU data protection law in general was reviewed in 2011, with proposals for a new EU data protection regulation presented by the relevant EU commissioner responsible in January 2012. This regulation would replace the current EU directive and national data protection in all 27 member states, and could lead to significant changes in data protection requirements in the UK.

    The proposed regulation enhances the rights of individuals, responds to changes in the internet and social media and other technological developments in the 15+ years since the current legislation was created, and aims to do away with the current fragmentation of 27 different national data protection laws

    A regulation is in effect a single law that applies throughout the EU, while a directive sets out rules which each member state has to transpose into national legislation. A directive therefore allows more flexibility, and allows for variation between member states. As of November 2012 the UK and five other member states were reportedly in favour of the current data protection directive being replaced by a new directive, nine states were in favour of it being replaced by a regulation, and the remaining 12 were undecided. A regulation needs a three quarters majority to be approved.

    Key decisions by the EU Council of Ministers were expected to be taken in summer 2013 with the remaining issues clarified by the end of 2013, but this has slipped and it is probably unlikely that the regulation will be approved by the end of this European parliament in May 2014. If approval is left to the new parliament, the future of the regulation will depend on whether, and to what extent, the new parliament accepts the work on the regulation done up to May 2014.

    When/if the regulation is finally approved it could come into force almost immediately, but presumably with a transition period. If the changes are to be in the form of a directive rather than a regulation, this would have to be transposed into domestic legislation in every EU member state, for which a period of several years would be allowed.

    In January 2013 data protection expert Paul Ticher produced a clear, nine-page briefing about the proposals and their potential impact on UK voluntary organisations. This summarises the key proposals, the UK information commissioner's views on them, and their implications for data controllers (organisations or individuals who decide, either on their own or with others, how personal data is to be processed and the purposes for which it is to be used) and data subjects (identifiable living individuals about whom personal data is held by the data controller). The briefing is at www.paulticher.com.

    The summary of key points comes primarily from Paul's briefing.

    Rights of individuals

    • Wider definition of personal data. In some situations, individuals and their data would be covered by the new regulation where at present they are not covered or the position is unclear. This could include, for example, online identifiers such as IP addresses, pseudonymous user names and profiling information. However, if the data controller can't identify the real person, they don't have to seek additional information to identify them if, for example, they get a subject access request. The UK information commissioner and others have recommended that a person should be treated as identifiable (even if their identity is not known) if the online identifiers are used to target advertising or treat the person differently from other people.

      The regulation aims to apply to situations where data subjects are within the EU but the data controller is outside, if the processing relates to offering goods or services or monitoring online behaviour.

      A change from directive to regulation could mean that decisions by the UK courts which have narrowed the definition of personal data, in particular the Durant decision in 2003, would no longer be valid.

      The regulation does not clear up the confusion over the definition of a manual (paper) filing system. The UK information commissioner has suggested that it would be more useful if the definition was based on the nature of the information, rather than the form in which it is kept.

    • Sensitive personal data. The current rules on "sensitive personal data" are confusing and unhelpful. The proposed regulation does not resolve the difficulties relating to these rules. Indeed, the regulation may make matters worse by replacing the term "religious or philosophical beliefs" in the current directive with "religion or beliefs", which could well be open to too wide an interpretation.

    • Tighter requirements for consent. Consent would be required in more situations, and would have to be freely given, specific, informed and explicit. "Soft consent", such as assuming consent if a person carries on using a service, or providing a pre-ticked consent box, may no longer be valid. The marketing opt-out would have to be "explicitly offered ... in an intelligible manner". Written consent for processing would have to be distinct from associated consent for other matters. These and other proposed changes are likely to require a thorough review of what options are offered by organisations and how they are presented, particularly in relation to fundraising and other marketing.

    • Clearer policies. Data controllers will have to have transparent and easily accessible policies, written in plain English, and adapted to the data subject, especially children.

    • Clarity about what is being collected, why and how long it will be kept. When collecting information from individuals, data controllers will have to provide more information than the current minimum. This will have to include the length of time for which data will be held, and whether the information being requested is obligatory or voluntary. The UK information commissioner has recommended having to make clear whether obligatory information is obligatory by law, or because the service requested cannot otherwise be provided, or because the data controller has decided it is obligatory.

    • Clarity about source of personal data. If data controllers obtain personal data from a source other than the data subject, they will have to tell the data subject where they got it from.

    • Data subject rights. Time limits for providing information and for complying with data subject rights are specified in more detail, and it is proposed that charging for subject access should not be permitted. Where a data subject does not want a data controller to process their data, the burden of proof will change, so that it will be up to the data controller to justify why the data should be processed rather than, as now, for the data subject to justify why it should not.

    Technological developments

    • Right to be forgotten. Partly in response to problems people have had in getting embarrassing information deleted from social media sites, the regulation introduces a "right to be forgotten". This will not be an absolute right, and there is considerable concern about whether it is realistic. Where data is wrong or is removed under the right to be forgotten, a data controller will have to notify anyone the data has been shared with about the correction or removal.

    • Children's personal data. The regulation defines a child as under 18, and would make it harder to process information about children solely on the basis of the data controller's "legitimate interests".

      Processing data of a child under 13 [not 18], in respect of "information society services", would require parental consent, verified as far as possible. This appears to be aimed primarily at ensuring children cannot sign up to online services without their parents' knowledge. The UK information commissioner has pointed out the difficulties with this: "The ingenuity of children in circumventing age verification systems should not be underestimated."

    • Domestic purposes. In a measure similar to the current UK domestic purposes exemption, the regulation exempts from the rules processing by individuals in the course of their own exclusively personal or household activity, where the individual does not have "any gainful interest" in the processing. The UK information commission has said it should be made clear that selling one's own possessions on something like eBay would be exempt, even though there is gainful interest. Another concern is that the regulation is not sufficiently clear about how far providers or social media platforms are or are not responsible for the content they host.

    Data controllers

    • Unincorporated organisations as data controllers. Both the EU directive and the proposed regulation make clear that any kind of organisation can be a data controller, but the UK's Data Protection Act defines defines the data controller as a person. Under UK law human beings are persons, as are incorporated bodies such as companies, charitable incorporated organisations and industrial and provident societies. Unincorporated organisations are not legally persons, but despite this the UK information commissioner has allowed their data protection registration to be made in the name of the organisation rather than in the names of individuals acting on its behalf. If the directive is replaced by the proposed regulation, this anomaly will be removed and it will be clear that unincorporated organisations can be defined as data controllers.

    • Policies, procedures and documentation. The proposed regulation sets out detailed policies and procedures that data controllers will need to have in place and documentation they will need to maintain. The UK government is strongly opposed to this provision, saying it would impose an unnecessary and expensive burden on business, for no great benefit in terms of protecting individuals.

    • Data protection officer. Under the proposed regulation, an organisation which is a public body, or employs more than 250 staff, or carries out monitoring of individuals as a core activity would have to appoint an independent data protection officer with specified tasks. There is considerable concern about this requirement.

    • Registration with ("notifying") the information commissioner. The proposed regulation does not include any requirement to register with the national supervisory authority (in the UK, the information commissioner). Instead, the authority would have greater powers to find out what is going on if they need to, for example by asking to see the documentation referred to above. Paul Ticher comments that it is hard to discern much benefit from the current notification procedure, although it is not clear how the Information Commissioner's Office would be funded in the absence of notification fees.

    • Notifying breaches. The proposed regulation would require all personal data breaches to be notified to the supervisory authority within 24 hours of the data controller becoming aware of them, and requiring the affected individuals to be notified where their personal data or privacy could be adversely affected. Not surprisingly, there are concerns that this is unnecessary and burdensome. The UK information commissioner is concerned about being swamped with reports of minor breaches, and would like to see triggers which define when the breach is serious enough for it to be necessary to inform the supervisory authority and/or the affected data subjects.

    • Monetary penalties. The possible penalties for data protection breaches in the regulation are fines of up to €1 million or 2% of the organisation's turnover. The UK information commissioner and UK government are unhappy that the regulation links the level of fine to the size of the organisation rather than the severity of the consequences for data subjects. An amendment proposed by a European parliament committee would increase 2% of turnover to 5%.

    • Data sharing. The regulation would require joint data controllers to have an arrangement setting out their respective data protection responsibilities, but it does not specify the form or content of the arrangement.

    • Relationship with data processor. A data processor is an organisation or individual who handles information on behalf of a data controller, but has no say in how the information is collected or used. Examples of data processors are payroll services, external fundraisers or mailing houses. The proposed regulation specifies in more detail than the current directive what must be in the contract between a data controller and data processor.

    • Overseas transfer of data / cloud services. Although the proposed regulation significantly revises the provisions for overseas transfers of data, there are still many issues. In particular, the problems of using cloud services are not covered in the proposed regulation.
    The proposed changes to individual rights, apart from tightening up on marketing consent, are relatively uncontroversial and are unlikely to be burdensome apart from initial changes to procedures. The changes relating to data controllers, on the other hand, are controversial and would be burdensome, but there is so much opposition that they unlikely to remain in their present form.

    Paul Ticher's briefing for voluntary organisations, from which most of the above information is taken, was updated in January 2013 and can be accessed via tinyurl.com/nnsu2oa.

    The proposed regulation is on the European Commission website via tinyurl.com/6rzj4se.

    The information commissioner's detailed analysis of the proposals, issued on 12 February 2013, is on the ICO website via tinyurl.com/d4r9o9y.

    Go back to contents
    Go to archived items about data protection (VSLH3 chapter 43)


    INTELLECTUAL PROPERTY COURT REFORMS

    Updated 8/2/15. This information updates chapter 44 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    Since 1 October 2013 the Patents County Court has been renamed as the Intellectual Property Enterprise Court, more accurately indicating that it deals with a wide range of IP rights: infringement of patents, designs, trade marks, copyright and other IP rights; revocation or invalidity of patents, registered designs and trade marks; and amendment of patents.

    Other changes have included the introduction of a scale of recoverable costs, capped at £50,000; a time limit on case hearings of one to two days to reduce costs; and the creation of a small claims track for copyright, trade mark and unregistered design cases under a value of £10,000.

    Information about the court is on the Ministry of Justice website via tinyurl.com/kwlajyf.

    Go back to contents
    Go to archived items about intellectual property (VSLH3 chapter 44)


    CHANGES TO COPYRIGHT LAW: IN EFFECT NOW

    Added 8/2/15. This information updates s.44.2 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    Copyright law is very strict, with only a limited range of exceptions where copyright material can be used without licence (permission). A range of new exceptions and changes came into effect in 2013 and 2014, following the Gowers review of intellectual property in 2006 and the Hargreaves review in 2011, and the need to implement European copyright directives. These changes amend the Copyright, Designs and Patents Act 1988, with the intention of creating a copyright system that is better suited to the digital age.

    Brief intro to copyright law
    Copyright protects original literary, dramatic, musical and artistic works; sound recordings, films, broadcasts and cable programmes; the typographical arrangement of published editions (what a publication looks like), and compilations of data that do not comply with the requirements for database right. It covers most original written and artistic work, including articles, reports and books whether published or not, leaflets, fundraising materials, drawings, paintings, photographs, correspondence, music, dance, plays and theatrical productions, email and website design and content, and computer programs.

    To be covered by copyright protection, the creative work must be recorded in writing or some other medium. This includes broadcast media, or electronic media such as the internet.

    Copyright comes into existence as soon as the work is recorded on some way, whether on paper, film, videotape, audiotape, CD, DVD, websites, computer, computer disks or any other medium. There is no need for registration, or to use a copyright © symbol.

    Copyright belongs to the creator of the work, unless the work has been created by an employee in the course of their employment, in which case it belongs to the employer; or if copyright has explicitly been assigned (transferred) to someone else.

    When the rights holder (the copyright owner) allows someone to use the work without assigning copyright, this is a licence — a permission to use the work in a specified way, or for a specified purpose or purposes. In most cases the licence has to be explicit, although not necessarily in writing. (For example, if you ring me and ask to reproduce this article, I can grant the licence orally. But the mere fact that I have made the article publicly available on the internet does not give you licence to reproduce it.)

    Information about all aspects of copyright law can be accessed at www.gov.uk/intellectual-property/copyright.

    Duration of performance rights in sound recordings
    From 1 November 2013, in a widely publicised change, copyright in sound recordings and performers' rights in sound recordings was extended from 50 to 70 years after the performance was recorded.

    Recorded performers and musicians will also benefit, after 50 years following publication of the sound recording, from some additional novel and innovative measures. These include a "session fund" paying many performers, such as session musicians, 20% of revenues from the sales of their recordings; a "clean slate" provision, whereby a producer may not make deductions from payments to performers, such as advances of royalties, from publication of a recording; and a "use it or lose it" clause, which allows performers and musicians to claim back their performance rights in sound recordings if they are not being commercially exploited.

    These changes implement the EU Directive on the Term of Protection of Copyright and Certain Related Rights (2011/77/EU), colloquially known as Cliff's law because of its most high profile campaigner, Sir Cliff Richard.

    The changes apply only to performances. Copyright in the words and music already lasts until 70 years from the end of the calendar year in which the author/creator of the work dies, or in the case of co-authors, 70 years from the end of the year in which the last surviving author dies.

    The Copyright and Duration of Rights in Performances Regulations 2013 are at www.legislation.gov.uk/uksi/2013/1782/made.
    The Copyright and Duration of Rights in Performances (Amendment) Regulations 2014 are at www.legislation.gov.uk/uksi/2014/434/made. These contain only a tiny but significant amendment to the main regulations.

    Private copying for personal use
    From 1 October 2014, individuals who have lawfully acquired on a permanent basis a lawful copy of any copyright work, other than a computer program, can make as many personal copies as they wish for their own private, non-commercial use. Format shifting for personal use, and making copies for backup or storage, are now expressly permitted.

    Where an individual had already, prior to 1 October 2014, owned a work but illegally made copies for private, non-commercial use, these copies are covered by the exception and are treated as legal personal copies.

    The exception does not allow copying of works that a person has borrowed, rented or downloaded on a temporary basis or works that are broadcast or streamed; transferring personal copies to others, except on a private and temporary basis; or making a personal copy, passing on the original (except on a private and temporary basis) and keeping the personal copy.

    Producers of copyright material can still use technological protection measures (TPMs) to prevent copyright piracy, but a complaint can be made to the secretary of state for business, innovation and skills if such measures are seen as unreasonably preventing or restricting the making of personal copies for private use.

    More information about the personal copying exception is in the guidance for consumers and guidance for creators and copyright owners on Gov.uk, via tinyurl.com/ng48ure.

    The Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014 are at www.legislation.gov.uk/uksi/2014/2361/made.

    Unlike other EU member states which have a similar private copying exception, the UK did not introduce a private copying levy on recordable media and recording devices. Such a levy would be a way to compensate rights holders for this right to copy and format shift their material. Not surprisingly, the music sector is not happy with these provisions, claiming that the introduction of this exemption without providing compensation for songwriters, composers and musicians contravenes the EU copyright directive, which includes a requirement that where a member state provides for such a copyright exception, as the UK now has, it must also provide fair compensation for rights holders.

    On
    18 January 2015 High Court Judge Mr Justice Ouseley granted the British Academy of Songwriters, Composers and Authors (BASCA), the Musicians' Union and UK Music permission to pursue a judicial review of the decision to introduce this exception without fair compensation, deeming that the claimants have an arguable case against the government.

    Information about the challenge is on the Musicians' Union website via tinyurl.com/owkfkrc and tinyurl.com/pf9rgqw.

    Quotation and parody
    Prior to 1 October 2014, extracts from copyright works could be used only for criticism, review and news reporting. Since then, extracts can be used more widely, provided the use is fair dealing (fair and reasonable), is no more than is required by the specific purpose for which it is used, and the source is acknowledged.

    Another exception allows minor use of copyright material for caricature, parody and pastiche, either live or recorded, provided the use is fair and reasonable. This change was introduced because copyright law restricted the ability to parody works of others, and this was seen by some as restricting freedom of expression.

    In its Exceptions to copyright: Guidance for creators and copyright owners (tinyurl.com/ng48ure), caricature, parody and pastiche are defined as having their usual meaning in everyday language, but also taking into account the context and purpose of the copyright exceptions.

    In broad terms, the guidance says, a caricature portrays its subject in a simplified or exaggerated way, which may be insulting or complimentary and may serve a political purpose or be solely for entertainment; parody imitates a work for humorous or satirical effect, evoking an existing work while being noticeably different from it; and pastiche is a musical or other composition made up of selections from various sources or one that imitates the style of another artist or period.

    Information about the exceptions for quotation and caricature, parody and pastiche is in the guidance for consumers and guidance for creators and copyright owners on Gov.uk, via tinyurl.com/ng48ure.

    The Copyright and Rights in Performances (Quotation and Parody) Regulations 2014 are at www.legislation.gov.uk/uksi/2014/2356/made.

    Copyright legislation provides not only for the protection of copyright, but also for certain moral rights, including the right of authors and film directors to object to certain deletions or adaptations being made to their works if the effect is derogatory. This provision could still be used to challenge a caricature, parody or pastiche.

    Accessible formats for disabled people
    Prior to 1 June 2014, copyright law allowed only for the provision of modified copyright works to visually impaired people or those who required subtitled broadcasts. Since 1 June 2014 a person with any type of disability requiring adaptation of a copyright work can make an accessible copy for their personal use, where such a copy is not commercially available. Educational establishments and not for profit organisations can make make and circulate accessible copies of copyright material to disabled people, where such copies are not commercially available.

    Information about the copyright exception for disabled people is on Gov.uk via tinyurl.com/ng48ure.

    The Copyright and Rights in Performances (Disability) Regulations 2014 are at www.legislation.gov.uk/uksi/2014/1384/made.

    Research and private study
    This change and the changes below on education, libraries and archives are covered by the Copyright and Rights in Performances (Research, Education, Libraries and Archives) Regulations 2014, at www.legislation.gov.uk/uksi/2014/1372/made.

    From 1 June 2014, existing provisions which allowed some types of copyright works to be copied for research and private study were extended to cover all types of copyright work, including sound recordings, films and broadcasts.

    Another new provision allows material to be copied in order to carry out a computational analysis of all the material contained therein (sometimes called text and data mining) for the purposes of non-commercial research, where the researcher has a lawful right to access the content.

    Information about the copyright exception for research is on Gov.uk via tinyurl.com/ng48ure.

    Education and teaching
    From 1 June 2014, the "fair dealing" (fair and reasonable) use of copyright material by educational establishments for non-commercial instruction is broadened to include "illustration for instruction". This includes, for example, use on interactive whiteboards and in presentations, by a person giving or receiving the instruction.

    The right to use broadcasts for teaching purposes is extended to allow the use of distance learning technology, provided it is a secure network accessible only by pupils/students and staff.

    These fair dealing exceptions do not apply where licences are available authorising the acts, and the educational establishment knew or should have known this.

    Educational establishments may copy up to 5% of a work (other than a broadcast, or an artistic work which is not included in another work) in any 12 month period, provided the copy is made for instruction for a non-commercial purpose and is accompanied by a sufficient acknowledgement. This is an increase from the previous limit of 1%. Such copies may be communicated to staff and pupils/students, provided that where the communication is to be received off the premises it must be made by means of a secure network accessible only to staff and pupils/students.

    Similar changes apply to performers' rights in relation to fair dealing with their performances and the copying of recordings of performances.

    Information about the copyright exception for education and teaching is on Gov.uk via tinyurl.com/ng48ure.

    Libraries, archives, museums and galleries
    From 1 June 2014 the previous exceptions for libraries and archives were extended to apply to museums and galleries as well, and were also extended to cover artistic works, sound recordings and films. Such bodies may now make material available for research or private study on dedicated terminals on their premises.

    Librarians may now make replacement copies of works for other libraries, and librarians may make single copies of published or unpublished works to people requesting them provided certain conditions are met. Similar exceptions apply in relation to the copying of recordings of performances.

    Information about the copyright exception for libraries, archives, museums and galleries is on Gov.uk via tinyurl.com/ng48ure.

    Material held by public bodies
    From 1 June 2014, the previous exception allowing public bodies to provide public inspection of copyright material they hold is extended to allow such information to be made available online, provided that it is not commercially available.

    Information about the copyright exception for copyright material held by public bodies is on Gov.uk via tinyurl.com/ng48ure.

    The Copyright (Public Administration) Regulations 2014 are at www.legislation.gov.uk/uksi/2014/1385/made.

    Orphan works
    "Orphan works" are works which are subject to copyright (by virtue of being a creative work that has been recorded in writing or some other medium), but where one or more of the copyright owners is unknown or cannot be found. Both the Gowers review of intellectual property law in 2006 and the Hargreaves review in 2009 recommended a compulsory licensing scheme for orphan works, so the works could be used in the same way as other copyright works, but without the consent of the copyright owner.

    Such a scheme came into effect on
    29 October 2014. It allows anyone who wants to use an orphan work, and has carried out a diligent search to identify the copyright owner, to apply to the UK Intellectual Property Office (IPO) for a licence to use the work. The IPO may then issue a licence covering commercial and/or non-commercial purposes, for up to seven years, on payment of a licence fee similar to what would be charged for similar non-orphan works. The IPO will hold all orphan works royalties it receives in a ringfenced account for eight years from the date of the licence, in case the rights owner comes forward.

    The government estimates that there are at least 91 million orphan works in the UK, including diaries, photographs, oral history recordings and films.

    Also on 29 October 2014, a more limited scheme under the EU Orphan Works Directive (2012/28/EU) came into effect in the UK. This allows specified cultural organisations, including publicly accessible libraries, educational establishments, museums, archives and public service broadcasters, to copy written, cinematic or audiovisual works and sound recordings, for the purposes of digitisation, restoration, indexing or displaying them on their websites. Any such use must be non-commercial, and the organisation must first have carried out a diligent search to identify the copyright owner.

    Information about the schemes is on the Gov.uk website, starting with an overview at tinyurl.com/pd7thl6.
    Guidance on what constitutes a diligent search is at tinyurl.com/koyu79v, with separate guidance for film and sound, literary works and still visual art.

    The Copyright and Rights in Performances (Licensing of Orphan Works) Regulations 2014, implementing the UK scheme, are at www.legislation.gov.uk/uksi/2014/2863/made.
    The Copyright and Rights in Performances (Certain Permitted Uses of Orphan Works) Regulations 2014, implementing the EU scheme, are at www.legislation.gov.uk/uksi/2014/2861/made.

    Legal deposit libraries
    Under the Legal Deposit Libraries Act 2003, every printed work published in the UK must be deposited with the British Library and, upon request, with five other legal deposit libraries (Bodleian Libraries, University of Oxford; Cambridge University Library; National Library of Scotland; Library of Trinity College, Dublin; and National Library of Wales).

    From 5 April 2013, this requirement is extended to works published in a medium other than print. Under these regulations, a copy of every offline work (work which is not accessed or delivered by means of the internet and is recorded in a physical form such as a CD ROM, DVD or microform) is required to be delivered to the British Library within one month of publication, and to the other deposit libraries on request.

    Work published online, including e-books and e-journals, will in most cases be delivered to deposit libraries by means of a web harvesting process, unless publishers agree an alternative method with the libraries.

    The new rules on non-print publications do not apply to works consisting only of a sound recording, film or both, or material which is merely incidental to it; works which contain personal data and are only made available to a restricted group of persons; or works published offline or online before 5 April 2013.

    Guidance on Gov.uk at tinyurl.com/cevh2nk explains the rules for non-print publications and how web harvesting works.

    Micro businesses (with fewer than 10 employees) and new businesses are exempt from the 2013 regulations.

    The Legal Deposit Libraries Act 2003 is at www.legislation.gov.uk/ukpga/2003/28/contents
    The Legal Deposit Libraries (Non-Print Works) Regulations 2013 are at www.legislation.gov.uk/uksi/2013/777/made

    Copyright licensing body codes of practice
    Collecting societies, also known as collective management organisations, collect licence fees for the use of copyright material, and distribute them as royalties to to the copyright holders. Collecting societies from which voluntary organisations and community groups might need licences include:

    • Performing Right Society, to use, perform or play music and/or lyrics;
    • Phonographic Performance Limited and Video Performance Limited, to use a record, tape, CD, DVD or similar recording or a broadcast;
    • Mechanical Copyright Protection Society, to record copyright music;
    • Newspaper Licensing Authority, to photocopy or digitise material from newspapers and some specialist publications;
    • Copyright Licensing Agency, to copy from magazines, journals and books;
    • Design and Artists Copyright Society, to use visual art and photographs;
    • Educational Recording Agency, for educational establishments to record broadcasts.
    There are other societies for other purposes. Information about collecting societies and copyright licensing is on Gov.uk via tinyurl.com/m54hv43.

    In early 2014 the British Copyright Council carried out a short review of how the societies' codes of conduct were working, and whether the codes formed a self-regulatory framework in which the copyright holders, licensees, the public and other copyright bodies can have confidence. The report, published on 2 June 2014, is on the Independent Code Review website via tinyurl.com/ovcfesq.

    Alongside this, the Copyright (Regulation of Relevant Licensing Bodies) Regulations 2014 came into effect on 6 April 2014, creating a statutory requirement for all collecting societies to have codes of practice setting out minimum standards of transparency and behaviour and establishing formal complaints procedures. The regulations are at www.legislation.gov.uk/uksi/2014/898/made.

    Recognition of foreign copyright works and performances
    S.22 of the Intellectual Property Act 2014 provides for the automatic extension of certain copyright provisions of the Copyright, Designs and Patents Act 1988 to nationals of, and works first published in, other countries without the need to include an extensive list of countries and territories in an order, as was previously necessary (for example, the Copyright and Performances (Application to Other Countries) Order 2013).

    The Intellectual Property Act 2014 is at www.legislation.gov.uk/ukpga/2014/18/contents/enacted.

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    Go to archived items about intellectual property (VSLH3 chapter 44)


    CHANGES TO COPYRIGHT LAW: IN THE PIPELINE

    Added 8/2/15. This information updates s.44.2 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).

    Extended collective licensing
    Traditional collective licensing relies on copyright holders opting in by giving a collecting society [see above] express permission to license their works. Extended collective licensing (ECL) allows an authorised collecting society to extend an existing collective licence so that it can license on behalf of all rights holders in that particular sector, except those who opt out. ECL assumes that rights holders want their works to be licensed, unless they explicitly say they do not want to be.

    The Copyright and Rights in Performances (Extended Collective Licensing) Regulations 2014, which came into effect on
    1 October 2014, introduce a new power for the secretary of state for business, innovation and skills to authorise a relevant licensing body to operate an ECL Scheme.

    The regulations are at www.legislation.gov.uk/uksi/2014/2588/made.

    Collective Rights Management Directive
    The EU Collective Rights Management Directive (2014/26/EU) aims to modernise and improve the functioning of collective management organisations (copyright licensing societies), and encourage the multi-territorial licensing of rights in musical works for online use. The government is consulting from 4 February to 30 March 2015 on implementation of the directive. Details are on the Gov.uk website via tinyurl.com/pcpdsxf.

    Duration of copyright in unpublished works
    Complex provisions in schedule 1 to the Copyright, Designs and Patents Act 1988 mean that millions of unpublished works, some hundreds of years old, are protected by copyright in the UK until 2039. Following a consultation from 31 October to 13 December 2014 on a proposal to deal with rights when the copyright runs out on 31 December 2039, the government decided not to take action at this time. It remains committed to dealing with this issue, but will seek further views.

    In the meantime, new copyright exceptions for museums and galleries and in relation to orphan works [see article above] go some way towards providing public access to works where the rights holder cannot be identified.

    If you're interested enough, Reed Smith solicitors have a fascinating (well, I think so) background article at tinyurl.com/ntsxy5x.
    The consultation and government response are at tinyurl.com/of65bja.

    Treaty on the protection of audiovisual performances
    The World Intellectual Property Organisation (WIPO) international treaty on the protection of audiovisual performances (referred to as the Beijing treaty) was adopted in Beijing in 2012 and signed by the UK on 12 June 2013.

    It will give performers a wide range of economic and moral rights, summarised by the UK government as moral rights to performances to prevent lack of attribution or distortion of their performances, protection in the digital environment, strengthening the position of performers in the audiovisual industry by providing a clearer international legal framework for their protection, and safeguards against the unauthorised use of their performances in audiovisual media such as television and film.

    Brief details are on the Gov.uk website via tinyurl.com/msghf4q.
    he treaty itself is at mjx2n2w.

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    COPYRIGHT GUIDANCE

    Added 8/2/15. This information updates chapter 44 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    The Intellectual Property Office (IPO) has developed a wonderful service, where anyone can ask it to provide basic guidance on an area of copyright law where there is particular confusion or misunderstanding, and the IPO will produce a brief "copyright notice" which provides an authoritative, impartial and reliable point of reference. Information about the service is at www.gov.uk/copyright-notices. (A short Gov.uk address! Will wonders never cease!)

    The first copyright notice, published in March 2014, is on digital images, photographs and the internet, and emphasises that just because an image is on the internet or a social media site doesn't mean it's available for anyone to use. It's a really useful publication, with a range of scenarios including taking a photograph (so the copyright is yours) but the photo includes a copyright work such as a painting. This copyright notice is at tinyurl.com/npxtzf8.

    The second notice, published in September 2014, covers assignment of copyright (transferring copyright to someone else). This covers presumption of first ownership, automatic assignment, elective assignment, partial assignment, assignment by reversion, assignment clauses, infringement of rights, remedies, copyright works created by children, and moral rights. It is at tinyurl.com/nxfsn9k.

    The third, on performance of live music, was published in December 2014, and the fourth, on knitting and sewing patterns, in January 2015. They are at tinyurl.com/p7va8en and tinyurl.com/nof43ls.

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    Go to archived items about intellectual property (VSLH3 chapter 44)


    EVENTS, LICENSING AND CAMPAIGNING


    RESOURCES ON LOBBYING AND CAMPAIGNING

    Update 24/3/14. This information updates s.46.1 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    Campaign Central, a hub for campaigners run by the Sheila McKechnie Foundation at www.campaigncentral.org.uk, is an excellent resource for people new to campaigning or wanting to improve their skills. As well as links to many campaigns and resources (including those specific to Wales, Scotland and Northern Ireland), it has a know-how page with sections on communicating your vision; mobilising support; influencing decision makers; using the internet; funding your campaign; using the media; techniques, tools and tactics; quick campaign tips; and the law and campaigning. This last section includes the law as your ally; charity law and campaigning; potential legal restrictions; and using human rights indicators to create change.

    It was going to happen anyway, but the Transparency of Lobbying, Non-Party Campaigning and Trades Union Administration Act [see below] has made it more urgent for the voluntary sector to develop its own resources on lobbying and campaigning.

    The National Council for Voluntary Organisations (NCVO) originally supported charities being included in a statutory register of lobbyists, but changed its mind when it became clear that the register would cover only a very small proportion of lobbyists. It announced on 17 June 2013 that it would publish details of how much it spends on lobbying and the meetings it holds with ministers, with its chief executive saying the voluntary sector should set the gold standard for transparency on lobbying.

    The NCVO move followed the House of Commons public administration select committee (PASC) recommendations on 6 June 2013, that charities should be more transparent about their political and campaigning activities. PASC said that the Charity Commission should require charities to declare in their annual returns how much of their spending has gone on political and communications work, and should require charities above the charity registration threshold to declare how much of their income in the previous year was received from public or government sources as grants or other forms of remuneration, and how much as private donations.

    The following month, NCVO announced that it would develop a code of good practice for lobbying and campaigning by charities, setting out high level principles for areas such as transparency, conflicts of interest, financial disclosure, political neutrality, accountability and focus on impact. The standards are being drawn up by a committee made up of representatives from 11 national organisations, and expected to publish the standards in March 2014. A press release about the committee is at tinyurl.com/p4ea5km.

    The Trades Union Congress and National Union of Students have set up a campaigning partnership to defend, extend and promote the right to campaign in 2013-14.

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    Go to archived items about campaigning and political activities (VSLH3 chapter 46)


    CHANGES TO GOVERNMENT CONSULTATIONS

    Added 24/3/14. This information adds to s.46.1 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    In July 2012, governmental guidance on consultations replaced the code of practice on consultation which had been issued in July 2008. As well as now being guidance rather than a code of practice, there were two significant changes: there was no longer a default 12-week period for consultations, and consultations would usually be conducted online unless there was good reason not to.

    Following the changes, the House of Lords secondary legislation scrutiny committee asked in November 2012 for the public's views on when it might be reasonable for the government to decide not to consult on policy development; when, and for how long, consultation exercises should be held; how the digital by default model might affect different groups in society; and whether the new approach to consultation, as set out in the guidelines, would lead to improvement in the process and outcomes.

    The guidelines were updated on 5 November 2013. The key consultation principles are:

    • departments will follow a range of timescales rather than defaulting to a 12-week period, particularly where extensive engagement has occurred before;
    • departments will need to give more thought to how they engage with and use real discussion with affected parties and experts as well as the expertise of civil service learning to make well informed decisions;
    • departments should explain what responses they have received and how these have been used in formulating policy;
    • consultation should be "digital by default", but other forms should be used where these are needed to reach the groups affected by a policy;
    • the principles of the Compact between government and the voluntary and community sector will continue to be respected.
    More details are on the Gov.uk website via tinyurl.com/l9l9nzv.

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    Go to archived items about campaigning and political activities (VSLH3 chapter 46)


    STATUTORY REGISTER OF LOBBYISTS

    Updated 24/3/14. This information updates s.46.1.2 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    The introduction of a statutory register of consultant lobbyists, a manifesto commitment of the Coalition government, is now included in part 1 the Transparency of Lobbying, Non-Party Campaigning and Trades Union Administration Act 2014. The act received royal assent on 30 January 2014 but as of March 2014 no date had been set for part 1 to come into force.

    The legislation states that a person (an incorporated body, partnership or individual) must not carry on the business of consultant lobbying unless the person (or, in the case of an employee, their employer) is entered in the register of consultant lobbyists. A person carries on the business of consultant lobbying if:

    • in the course of a business and in return for payment,
    • the person personally makes communications
    • on behalf of another person or persons
    • to a government minister or permanent secretary of the civil service (or someone in a specified equivalent position),
    • relating to legislation, a government policy, a contract or other agreement, a grant or other financial assistance, a licence or other authorisation, or the exercise of any other function of the government.
    There is provision for ministers to amend the definition of consultant lobbying to include communications made personally to a government special adviser.

    However, this definition of consultant lobbying applies only if the person is registered for VAT, and if none of the exceptions set out in schedule 1 of the Lobbying Act applies. These exceptions include, for example, a business whose activities are primarily non-lobbying, and where lobbying is incidental to those activities. If a person is not registered for VAT or if one of exceptions applies, the person is a lobbyist, but is not carrying out the business of consultant lobbying and does not have to be entered in the register of consultant lobbyists.

    It will be an offence to carry on the business of consultant lobbying while not on the register. The register will be publicly available, and will include details of consultant lobbyists and their clients. The government says the intention is not to prevent or deter lobbying, but to bring transparency about who is lobbying for whom.

    However, the bill does not cover lobbying by in-house lobbyists, or lobbying by people working for organisations or businesses whose main business is not lobbying. The voluntary sector has generally welcomed the fact that its own lobbyists will not be required to register, although registration will be required for third parties paid by charities and other voluntary organisations to lobby on their behalf. Such consultant lobbyists will have to be registered and will have to disclose that they represent the organisation.

    Less welcome is that major corporations will be able to avoid registering — and thus avoid transparency — by using consultant lobbyists only for communications with officials below ministerial or senior civil service level, and using their own in-house lobbyists for communications with ministers and senior civil servants. There is also disappointment within the voluntary sector that there is no code of conduct on lobbying, and no independent regulator.

    A critic of the bill, Labour MP and shadow Cabinet Office minister Jon Trickett, said the proposed register would exclude 99% of meetings between lobbyists and ministers, 80% of lobbyists and 95% of lobbying activity. Labour amendments to extend the register to include a wider range of lobbyists, including those working in charities, were defeated at an early stage as the bill went through the House of Commons.

    Unlock Democracy has useful briefings on the register of lobbyists and how it could be improved, at tinyurl.com/malagjq.

    The Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014 is at www.legislation.gov.uk/ukpga/2014/4/contents.

    Background to the register of lobbyists
    The government's starting point for developing a statutory register of lobbyists was a Cabinet Office consultation from 20 January to 13 April 2012 on how such a register should work.

    Lobbying was described as seeking to influence the UK government or UK parliament on public policy, government decisions or legislation. Lobbyists were defined as those who undertake, or whose employees undertake, lobbying activities on behalf of a third party client. There was no intention to include individuals or organisations who undertake lobbying activities on their own behalf. It would therefore not cover interaction between constituents and their MPs, or the normal interaction between businesses, charities or other voluntary organisations and the government.

    It was proposed that the register would include the names of lobbying firms, individual lobbyists and their clients, and whether a lobbyist was previously a government minister or senior civil servant.

    Following the consultation, the House of Commons political and constitutional reform committee published its report on 13 July 2012, and a summary of responses to the consultation was published on 16 July 2012. The committee criticised the proposed statutory register of lobbyists, saying it would cover only lobbyists acting on behalf of third party clients, and not in-house lobbyists within organisations and businesses. The committee recommended that the register be replaced with a system of "medium regulation" under which all those who lobby professionally, in a paid role, would have to declare the issues they are lobbying on. Unlike the initial proposals, this could catch employees of charities, trade unions, thinktanks and other organisations or businesses, if the employees' work was primarily lobbying.

    The report also recommended other ways to improve transparency, such as publishing information about ministerial meetings within a month of their happening; improving the level of detail in meeting disclosures; standardising the format of meeting data; and publishing the company or charity number of the organisation doing the lobbying.

    The government did not accept these recommendations, and part 1 of the Lobbying Act reflects its original proposal.

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    REGISTER OF LOBBYISTS FOR SCOTLAND?

    Added 24/3/14. This information updates s.46.1.2 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    On 13 June 2013, the Scottish government announced that it would introduce a bill within the current session of the (Scottish) Parliament, to require some individuals and organisations who lobby MSPs, Scottish ministers or relevant public officials, either on their own account or on behalf of third parties, to record relevant information about their lobbying activity in a published register. The press release announcing the proposed register is at tinyurl.com/m3rbs3u.

    Following this, the Scottish government's standards, procedures and public appointments committee carried out an inquiry from 30 September 2013 to 10 January 2014 on whether there is a problem with lobbying with Scotland, and if so whether a register of lobbyists would be an appropriate solution. Forty-three organisations and individuals submitted evidence to an inquiry. Following this, the committee took oral evidence at meetings from January to March 2014. The committee's call for evidence, the written submissions it received, and minutes of meetings and official papers are at tinyurl.com/ke453mk.

    Voluntary sector views have been mixed, with the Scottish Council for Voluntary Organisations (SCVO) saying that a register would have "a profoundly negative effect on the free flow of information and ideas between the sector, parliamentarians and government officials". Instead of a register, SCVO recommends that MSPs and ministers should be required to make their diaries public. But other organisations saying a register is a necessary means of improving lobbying transparency and accountability in Scotland.

    Unlock Democracy has an "open up lobbying Scotland" website at tinyurl.com/n4khr4t. They make the point that there was very little lobbying in Scotland before devolution, but lobbying of the Scottish government and Parliament is growing in scale and importance as Scotland makes more of its own decisions.

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    CAMPAIGNING IN THE RUN-UP TO ELECTIONS

    Updated 24/3/14. This information updates s.46.5 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    The Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014 (the Lobbying Act) received royal assent on 30 January 2014, with most of part 2 (ss.26-39), on non-party campaigning, coming into effect immediately. Non-party campaigning means campaigning by individuals or organisations who are not registered candidates or political parties.

    The regulated period for the May 2015 general election (the first period governed by the new rules) started on
    19 September 2014, the day after the Scottish referendum, and ends on polling day, 7 May 2015.

    Despite some very significant changes achieved by a massive voluntary sector campaign as the bill was going through Parliament, there are still deep concerns about the impact part 2 will have on campaigning by charities and other organisations during the period before elections.

    Potential impact of the new rules includes:

    • the administrative difficulties in knowing which expenditure is and is not classed as controlled expenditure, and in particular separating out the staff and other associated costs which are included;

    • confusion for charities because an activity may be completely legitimate under charity law, but still get caught as regulated activity under the Lobbying Act;

    • uncertainty about whether an activity is regulated, and the risk of criminal liability if an organisation does not register with the Electoral Commission when it should, could make organisations risk-averse and deter them from undertaking activities that they are actually allowed to do;

    • even as amended, the act has the effect of restricting freedom of speech in the period before elections, and an organisation may be tempted deliberately to ignore the law, as some people are advocating — with the result that the organisation or its governing body members could be fined for breach of electoral law, and/or that governing body members could be held personally liable to repay to the organisation any expenditure it incurred on campaigning activities carried out unlawfully;

    • the Electoral Commission has expressed concern that the act effectively gives it wide discretion to interpret what activity will be regulated as political campaigning, which could lead to contentious interpretations that create even more uncertainty for affected organisations;

    • the Electoral Commission has also said some of the new controls in the bill may in practice be impossible to enforce.

    Guidance
    The Electoral Commission is the regulator for election funding and campaigning. Its full, detailed guidance on the new rules was expected in July 2014. In the meantime it is issuing regular updates summarising the new legislation. These have included summaries of changes brought in by the act (2 February 2014), activities regulated under the new rules (23 February) and the rules on registration with the Electoral Commission (17 March). These are at tinyurl.com/ofn33xo.

    If your organisation engages in any sort of campaigning which could have the effect of influencing voters in the period before an election — even if this is not in any way its intention — it is essential to sign up for future Electoral Commission updates at tinyurl.com/ofn33xo.

    NCVO issued an 8-page Charities and the Lobbying Act: Frequently asked questions on 11 March, covering not only the basics of the legislation but also questions such as what happens if a charity has been campaigning on an issue that receives the endorsement of a particular party or candidate; what happens once an organisation has registered; whether a hustings organised by a charity, a manifesto published by a charity or a fringe event organised at a party conference would come within the scope of the rules; and many more. The briefing is on the NCVO blogs website via tinyurl.com/pnnxlck.

    The Charity Commission, Office of the Scottish Charity Regulator and Charity Commission for Northern Ireland are working with the Electoral Commission to produce guidance specifically for charities in summer 2014. In England and Wales this guidance will update the Charity Commission's current guidance on charities, elections and referendums, which supplements CC9 on campaigning and political activities, at tinyurl.com/lqqqsxh. Even if an activity is allowed under the Lobbying Act, all charity campaigning must comply with charity law and be within the Commission's guidelines. And even if it complies with charity law, if it takes places during the run-up to an election it must comply with the Lobbying Act rules on controlled expenditure and Electoral Commission registration. It's not an either/or.

    The Charity Commission has said, "it is really important that charities understand that registering with the Electoral Commission will not mean that charities are failing to comply with charity law on campaigning and political activity. Charity law makes quite clear that political activity and campaigning can be legitimate and valuable activities for charities to undertake as a way of furthering their charitable purposes. This legislation changes the rules that apply in the run-up to general elections, but does not challenge the important principle that charities are free to campaign, so long as they do so to further their mission".

    The Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014 is at www.legislation.gov.uk/ukpga/2014/4/contents.

    Part 2 of the Lobbying Act amends part 6 of the Political Parties, Elections and Referendums Act 2000 (PPERA), which regulates the campaign activities and finance of non-parties in the run-up to elections. This act is at www.legislation.gov.uk/ukpga/2000/41/contents.

    The new rules
    The new legislation will have a significant impact on campaigning, especially for larger organisations, and will be challenged again when it is reviewed after the 2015 general election. However, it is not as bad as it could have been, following a massive campaign by the voluntary sector — in particular 38 Degrees (www.38degrees.org.uk) and the hastily assembled but wonderfully effective Commission on Civil Society and Democratic Engagement (civilsocietycommission.info).

    Controlled expenditure. Spending on election material distributed to the public in the run-up to an election, and associated staff costs and overheads, have been regulated since the Political Parties, Elections and Referendums Act 2000. But under the Lobbying Act 2014 s.26, expenditure on a much wider range of activities will be controlled if the activity "can reasonably be regarded as intended to promote or procure electoral success at any relevant election" for one or more parties, or for one or more parties or candidates who advocate or do not advocate particular policies. S.26 makes clear that this covers such campaigning even if it does not mention any party or candidate, and even if its purpose is not to influence the election.

    Regulated campaign activities as defined in schedule 3 of the Lobbying Act now include, in addition to the production or publication of election material made available to the public at large or any section of the public:

    • canvassing, or market research seeking views or information from, members of the public or a section of the public;
    • press conferences or other media events organised by or on behalf of the non-party campaigner;
    • transport by any means of persons to any place or places in connection with publicising the campaign;
    • public rallies or other public events, but with some exceptions (see below);
    • plus the associated staff costs and other expenses incurred in relation to any of the above, unless set out below.
    Until now, the Electoral Commission has not considered an organisation's members or committed supporters (for example, regular donors or people actively involved in the organisation) to be "the public". In light of the new legislation, it is currently reviewing its guidance on who does and does not constitute the public or a section of the public.

    Under the Lobbying Act schedule 3, expenditure is not controlled if it relates to:
    • publication (other than an advertisement) in a newspaper or periodical, or broadcast on the BBC, Sianel Pedwar Cymru or a service licensed under the Broadcasting Acts 1990 or 1996;
    • translation of material from English into Welsh or from Welsh into English;
    • reasonable travel costs, accommodation or personal needs of an individual;
    • reasonable expenses incurred in relation to an individual's disability (as defined in the Equality Act 2010), either for an individual working on the campaign or to make an activity accessible to a member of the public;
    • expenses incurred in relation to services provided voluntarily by an individual, in their own time and free of charge;
    • safety and security costs for public rallies and other public events;
    • public rallies and other public events that are the non-party campaigner's annual conference, or a public procession or protest meeting taking place under the provisions of the Public Processions (Northern Ireland) Act 1998.
    Many of these exceptions were introduced following lobbying by the voluntary sector. However, the sector was not successful in getting staff costs excepted. This really was contentious: in the final "ping pong" stages of the bill's passage through Parliament, the House of Lords accepted an amendment to exclude background staff costs from controlled expenditure; the House of Commons did not accept the amendment so it went back to the House of Lords, where the vote was 245-245. Because it had not been approved, the amendment did not succeed — so staff costs must now be included.

    The Electoral Commission is working on its guidance on staff costs and other associated costs of regulated activity. It will emphasise making an honest and reasonable assessment of the time and other costs involved with regulated activities, as part of the overall work of relevant staff members and the organisation as a whole. Time sheets and similar detailed breakdowns are unlikely to be required.

    Regulated period. The regulated period for general elections usually one year before the election, but for the 2015 general election only, the regulated period will be 7.5 months, starting on
    19 September 2014 (the day after the Scottish referendum) and ending with election day on 7 May 2015. The sector campaigned for this so the Electoral Commission would have more time to produce guidance before the regulated period begins.

    Although the first regulated period will be only 7.5 months, the full amounts for registration thresholds and spending limits will apply — they will not be reduced on a pro rata basis.

    For elections to the European parliament, the regulated period is four months. Different periods apply for local elections.

    Threshold for registration with the Electoral Commission. An organisation must register with the Electoral Commission if its controlled expenditure is going to exceed the registration threshold. The lobbying bill as originally proposed would have reduced registration thresholds from £10,000 to £5,000 for expenditure in England, and from £5,000 to £2,000 each for expenditure in Scotland, Wales and Northern Ireland. Following campaigning by the sector about the number of small organisations that would be caught by these reductions, the government agreed to double the threshold, from the previous £10,000 to £20,000 in England, and from £5,000 to £10,000 in Scotland, Wales and Northern Ireland.

    Any organisation which carried out activities which involve controlled expenditure is referred to in the legislation as a third party. If it is registered with the Electoral Commission, it is a recognised third party.

    With the doubling of the current registration thresholds, most organisations which carry out small scale campaigning will not have to register with the Electoral Commission, with all of the accounting and reporting requirements that this involves. They will, however, need to monitor controlled expenditure to ensure it does not go over the threshold, and if it looks like it might go over, they must register before it does. So they may still need to have accounting systems in place to carry out this monitoring.

    A decision about registering with the Electoral Commission should be made at board level, after proper consideration of the reasons for carrying out campaigning activities that are regulated under the Lobbying Act, and for carrying them out at a level that requires registration. The board should also ensure procedures are in place to monitor controlled expenditure. Organisations registered as companies which carry out regulated activities may also need a resolution by the company members [see Company law implications, below].

    It is an offence not to register with the Electoral Commission if required to do so, or to exceed the limits on controlled expenditure when registered.

    Limit on controlled expenditure. An organisation which is not registered with the Electoral Commission cannot have controlled expenditure of more than the registration threshold. For organisations registered with the Commission, the Lobbying Act has reduced the spending limit for controlled expenditure in England from £793,500 to £319,800, a 60% reduction. Campaigning as the bill was going through Parliament did not succeed in getting this increased.

    The government initially proposed to reduce the limit from £108,000 to £35,400 in Scotland, from £60,000 to £24,000 in Wales, and from £27,000 to £10,800 to in Northern Ireland. Following campaigning, these proposed amounts were each increased by £20,000, to £55,400 in Scotland, £44,000 in Wales, and £30,800 to in Northern Ireland. These means there is a 49% reduction in maximum controlled expenditure in Scotland and a 27% reduction in Wales, but a 14% increase in Northern Ireland.

    For organisations which campaign across all of the UK, the total UK-wide limit is reduced from the previous £988,500 to £450,000 — an overall 54% decrease.

    Apart from organisations which campaign only in Northern Ireland, these new limits will mean a really significant decrease in the amount of campaigning which can be undertaken in the run-up to an election. And the amount of activity will be decreased much further, now that expenditure is controlled not only on election materials, but on so many other activities and their staff costs.

    Constituency and other spending limits. Within the spending limits for each part of the UK, s.29 brings in a new limitation on expenditure focused on a particular constituency or constituencies, and s.30 brings in new limits on spending aimed at promoting one political party (which of course charities could not do, but non-charities might be able to). The constituency limit is £9,750 over the year before a general election.

    Many organisations believe constituency limits are unworkable, because much campaigning reaches people from many constituencies (such as leafletting at a large shopping centre). Campaigners as the bill was going through Parliament recommended that they be scrapped, or at least should be amended to include only election material specifically addressed or delivered to individuals or households in the constituency, and unsolicited telephone calls made to such individuals or households. This didn't happen.

    Joint campaigns. As originally proposed, every organisation which took part in a campaign with other organisations would have had to register with the Electoral Commission if the total amount spent by the joint campaign was expected to exceed the registration threshold, and would have had to report to the Commission. Following lobbying by the voluntary sector, s.27 of the Lobbying Act allows one "lead campaigner") to register and account for a coalition campaign, rather than every organisation involved.

    The other organisations involved must be named as "minor campaigners". Although these organisations will not have to report directly to the Electoral Commission, they will need to provide required information to the lead campaigner, so will still need to keep accounting records showing their expenditure on regulated activities.

    Reporting of donations for controlled expenditure. S.33 of the Lobbying Act introduces complicated new rules requiring organisations registered with the Electoral Commission to report donations received for the purpose of meeting controlled expenditure. During the regulated period before a general election, these reports must be made quarterly before Parliament is dissolved, and weekly in the period between dissolution of Parliament and the election. This will involve significant admin and compliance costs.

    Review of the Act. As a result of campaigning by the sector, a review of the legislation on non-party campaigning will take place after the 2015 general election, with a new body set up before the election to collect evidence during the regulated period. Lord Harries of Pentregarth, who as chair of the Commission on Civil Society and Democratic Engagement which was deeply involved with the amendments to the lobbying bill, said in early March that the Commission has now closed down, but will reconvene to look at the Electoral Commission guidance when it is issued, and will contribute to the post-election review of the act.

    At the end of February David Cameron said, in a letter to Sir Stephen Bubb of ACEVO, that "the legislation will not affect the majority of charities and other campaigning organisations", and that it "will only apply to third party organisations or charities who spend money to procure the electoral success of a particular political party or candidate." These statements are likely to be the touchstone against which the voluntary sector assesses the impact of the new rules.

    Company law implications
    Part 14 of the Companies Act 2006 (ss.362-379) is likely to apply to any registered company, including a company limited by guarantee or community interest company, which carries out campaigning activities which meet the definition in s.26 of the Lobbying Act, i.e. an activity which "can reasonably be regarded as intended to promote or procure electoral success at any relevant election". Even if the company's expenditure is not high enough to meet the threshold for registration with the Electoral Commission, its expenditure on such activities would be defined as political expenditure under s.365 of the Companies Act, and would require a resolution in a specified form by the members of the company.

    The same rule on authorisation by the members of the company applies to any company which makes donations totalling more than £5,000 in any 12-month period to political parties and/or political organisations. Under s.363 of the Companies Act, a political organisation is any organisation which "carries on, or proposes to carry on, activities that are capable of being reasonably regarded as intended to affect public support for a political party or an independent election candidate, or to influence voters in relation to any national or regional referendum in the UK or another EU member state".

    These requirements are not new, but companies may not have been aware of them.

    Part 14 of the Companies Act 2006 is at www.legislation.gov.uk/ukpga/2006/46/part/14.

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    CHANGES TO JUDICIAL REVIEW

    Updated 24/3/14. This information updates s.64.1.1 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    Judicial review is the process by which decisions or actions of bodies exercising public functions — or the way in which a decision has been made — can be reviewed by the courts. A judicial review challenge can be made if the public body misused its powers, acted irrationally (for example, took into account irrelevant factors in making the decision), or did not observe procedural rules and act fairly. An example is a challenge to a local authority's decision to summarily cut grants to community organisations, with no consultation or even notice period. Judicial review cannot in itself change the content of a decision, but the court can set aside (quash) the decision, and can require the public body to go through the decision making process again.

    The time limit for bringing a judicial review is short — three months from the date of the decision which is being challenged — but in July 2013 this limit was reduced to six weeks for some planning and procurement decisions, and other changes were made to judicial review procedures.

    The government consulted from 6 September to 1 November 2013 on further changes to judicial review, including funding changes "to encourage claimants and their legal representatives to consider more carefully the merits of bringing a judicial review and the way they handle proceedings". On the day the consultation was launched, justice secretary Chris Grayling made his feelings clear in the Daily Mail, where he wrote that professional campaigners articulating a left-wing vision are taking over charities, and judicial review is being used as a promotional tool by countless left-wing campaigners.

    The government published its response to the consultation on 6 February 2014. Some of the proposals it is taking forward are in part 4 of the Criminal Justice and Courts Bill (clauses 50-57), which was presented to Parliament on 5 February 2014. Other proposals will be taken forward in other legislation.

    Standing. At present, any person (individual or corporate body) with "sufficient interest" in a decision can apply for judicial review, even if they do not have a direct interest. Clearly an organisation whose grant is summarily cut can apply for judicial review, but so also can the local council for voluntary service or a coalition of organisations whose grants have not been cut, but which receive grants and could thus be affected by the grant making process. A person with sufficient interest is said to have standing to bring the review.

    The consultation asked whether standing to bring a judicial review should be limited only to persons with a direct and tangible interest in the decision. The consultation documents made clear that this was intended to "exclude persons who had only a political or theoretical interest, such as campaigning groups" (apart from organisations which campaign for environmental protection, which have standing under EU law even if they are not directly affected). Not surprisingly there was strong opposition to this, not only from campaigning organisations but also from the legal profession and the judiciary. The government decided it would not amend the rules on standing, but would achieve its purpose through financial disincentives to bringing weak claims, and by changing the way the court deals with judicial reviews based on procedural defects.

    Makes no difference. Under clause 50 of the bill, it will be easier for courts to dismiss cases which relate only to procedural issues, where the public body can convince the court that the outcome would have been substantially the same even if the procedural irregularity had not occurred.

    Interveners' costs. A party to a judicial review is called a relevant party. An intervener is a body or individual who is not a relevant party, but files evidence or makes a submission to judicial review proceedings. At present, interveners are generally expected to bear their own costs. But under clause 53 of the bill, the court will be able to require the intervener also to pay costs arising to the relevant parties from their intervention, unless there are exceptional circumstances or the judge has invited a third party to intervene.

    Protective costs orders. In many types of cases, a court can make a protective costs order setting a maximum on the amount an unsuccessful claimant can be required to pay towards the costs of the other party. Under clauses 54-56 of the bill, the court will be able to make such a cost capping order in judicial review proceedings only if there is a "strong public interest in resolving an issue". The criteria to be used in determining which proceedings are public interest proceedings and therefore potentially eligible for a costs capping order are set out in clause 54, and can be changed by the lord chancellor.

    The restrictions on costs capping orders do not apply to proceedings relating to the environment.

    Legal aid. Under other legislation, the availability of legal aid for judicial review proceedings will be restricted.

    These financial and procedural provisions will deter voluntary sector organisations, in particular those with limited funds, from seeking judicial review — often on behalf of vulnerable beneficiaries who are not in a position to take legal proceedings themselves.

    As well as the financial and procedural proposals, the consultation asked whether judicial review should continue to be able to be used in cases involving the public sector equality duty [see Public sector equality duties on the Equality & human rights page of this website]. The Government Equalities Office, which is responsible for equality strategy and legislation, is considering the results of the consultation, so no changes are included in the Criminal Justice and Courts Bill.

    The Public Law Project, a charity which aims to improve access to public law remedies for people whose access to justice is limited by poverty or other disadvantage, is encouraging organisations to take action to stop the bill from undermining judicial review. It published two briefings — one for parliamentarians and lawyers, and one for civil society organisations — on 12 March 2014. Both can be accessed via tinyurl.com/ngcs8lg. PLP can also provide the text of a draft letter to be sent to MPs, and/or the proposed text of amendments to the bill it considers necessary.

    Compact Voice has a two-page briefing on what the changes mean in relation to the Compact. This can be accessed at tinyurl.com/kn65fmy.

    The Criminal Justice and Courts Bill can be accessed and tracked on the Parliament website via tinyurl.com/p3ztbac.

    The consultation documents and the government's response are on the Ministry of Justice website via tinyurl.com/lo4dqkc.

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    GUIDANCE ON ORGANISING COMMUNITY EVENTS

    Updated 2/3/14. This information adds to s.47.1.1 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    The Cabinet Office issued on 18 January 2014 The "Can Do" guide to organising and running voluntary and community events, aiming to dispel myths about regulations that do and don't apply to such events. Its seven sections cover:

    • Planning an event: objectives; planning and sharing the work; bookings, permissions and licences that might be needed; safety, access issues and insurance; budget; publicity; planning the day or days in detail; after the event.
    • Licences and other permissions: raffles, lotteries, bingo and race nights; entertainment; alcohol.
    • Keeping organisers, volunteers and participants safe: general issues; fire safety.
    • Food safety: making sure food is safe; when food has to be labelled.
    • Road closure.
    • Insurances.
    • Sources of specialist guidance for community events; street parties; fireworks displays and Chinese/sky lanterns; cycling events; road running races; car treasure hunts; the Big Lunch; Our Big Gig; children's play.
    The Can Do guide is on the Gov.uk website via tinyurl.com/nsoe5ug.

    The publication follows a "focus on enforcement" review by the Department for Business, Innovation and Skills from 21 May until 2 July 2012, looking at regulation of short-term (not longer than two weeks) volunteer-based events. The review found a lack of clear advice and little consistency in the guidance provided by central and local government bodies, and a perception that volunteer events are subject to greater legal and regulatory requirements than is actually the case.

    The Can Do guidance covers all events, not just those which are volunteer-based. The government is sending information about the guidance to all local authorities, as they are responsible for many aspects of event regulation.

    The Cabinet Office also issued Your guide to organising a street party on 18 January 2014. This looks at eight myths about street parties, and includes a form to apply for road closure. It is on the Gov.uk website via tinyurl.com/l6gvbmy. Additional information is in Organising a street party at tinyurl.com/k9lv3vp.

    Community Matters' two-page Top tips on holding a community event was issued in September 2013. It looks primarily at music and video licences, and also at insurance and covering costs. It can be accessed via tinyurl.com/pq632fn.

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    LOCALLY SET FEES FOR ALCOHOL AND ENTERTAINMENT LICENSING

    Added 24/11/14. This information updates s.47.2 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    The Licensing Act 2003 regulates the sale of alcohol, the provision of alcohol by a club to its members, the provision of late night refreshment and regulated entertainment in England and Wales, and is primarily administered by local authorities as licensing authorities.

    Licensing fees are payable to the licensing authority by holders of licenses and certificates and by those making applications or issuing notices. The fees are intended to recover the costs incurred by the authority in carrying out these licensing functions. Current fee levels were set in 2005 and have not been adjusted since, and apply nationally.

    The Police and Social Responsibility Act 2011 amended the Licensing Act to allow the home secretary to make regulations allowing fees to be set by individual licensing authorities, rather than being set centrally.

    The Home Office consulted from 13 February to 10 April 2014 on aspects of the move to locally set fees, including:

    • whether and under what circumstances licensing authorities should be able to charge different amounts to different types of premises;
    • the maximum amount that can be charged;
    • the mechanisms that will provide reassurance to fee-payers that fees are being set transparently, at cost, and efficiency encouraged;
    • whether there should be a single national payment date for annual fees, rather than fees remaining payable on the anniversary of the date the licence was granted.
    The consultation documents can be accessed on the Gov.uk website via tinyurl.com/nhps3ko. As of 23 November 2014 the government's response to the consultation had not been published.

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    PERSONAL LICENCES TO SELL ALCOHOL

    Added 24/11/14. This information updates s.47.2.2 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    Most premises In England and Wales where alcohol is supplied under a premises licence must have a designated premises supervisor (DPS), who has day to day responsibility for running the premises. There is an exception under which village halls, church halls and similar community premises which have a premises licence can apply for removal of the requirement to have a DPS. Instead, the governing body as a whole takes on the responsibilities of a DPS.

    A DPS must hold a personal licence to sell alcohol, issued under the Licensing Act 2003. It is not a requirement for everyone who sells alcohol to hold a premises licence, but anyone who does not hold one must be authorised to sell alcohol by a personal licence holder. This does not have to be the DPS.

    General information about personal licences, designated premises supervisors and other aspects of alcohol licensing is at www.gov.uk/alcohol-licensing.

    Personal licences are issued by the local authority and are valid for 10 years. Clause 55 of the Deregulation Bill, which is going through Parliament, will remove the renewal requirement, so any licence issued or expiring on or after the day this provision comes into effect will be valid indefinitely, with no requirement for renewal.

    Under s.121 of the Licensing Act 2003, personal licences must be renewed between one and three months prior to their expiry. The first licences under the Licensing Act were issued in February 2005, so are now in their renewal period. Anyone with a licence due for renewal should carefully monitor the progress of the Deregulation Bill at services.parliament.uk/bills/2014-15/deregulation.html, and renew if the new legislation will not be in place by the renewal deadline.

    The Deregulation Bill itself can be accessed on the parliament website via tinyurl.com/ps3n425.

    While planning to make personal licences indefinite, the Home Office also consulted from 12 September to 7 November 2013 on abolishing personal licences and allowing local authorities to impose targeted conditions on premises licences where appropriate. There was significant opposition to this from local authorities and businesses, and the government announced on 24 March 2014 that the system of personal licences would be retained. The consultation documents and government response can be accessed via tinyurl.com/pqdgqec.

    Presumably because the government was hoping to abolish personal licences, the Deregulation Bill provision to make them indefinite does not include any way of ensuring the person remains suitable as a licence holder. One commentator has suggested that the system in Scotland, where personal licence holders must undertake mandatory training every five years, could be considered for England and Wales.

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    ALCOHOL LICENSING: INCREASED MAXIMUM FOR TEMPORARY EVENT NOTICES

    Updated 24/11/14. This information updates s.47.2.3 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    A temporary event notice (TEN) can be used for a one-off event involving the sale of alcohol and/or regulated entertainment [see below] which would normally need a premises licence. At present, there is a limit of 12 TENs for the same premises in a calendar year, starting on 1 January.

    From
    1 January 2016, the number of events for which a temporary event notice can be given for the same premises will be increased from 12 to 15 in a year.

    This change is in s.54 of the Deregulation Bill, which is currently going through parliament and is on the parliament website via tinyurl.com/ps3n425.

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    ALCOHOL LICENSING: COMMUNITY & ANCILLARY SELLERS NOTICE (CAN)

    Added 24/11/14. This information adds a new s.47.2.4 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    Under clause 55 and schedule 17 of the Deregulation Bill, which is currently going through Parliament, community groups and low-risk businesses will be able to sell or give away limited amounts of alcohol through the use of a community and ancillary sellers notice (CAN).

    "Selling" means not only clearly charging for an alcohol drink, but also providing drinks which may be called free or complimentary, but in reality are given as part of the price for a ticket or similar admission fee, or in exchange for a donation, or as part of a contract for provision for a service (such as bed and breakfast provision).

    The CAN is intended for community groups, such as voluntary organisations and charities, which hold occasional events at which they would like to sell or provide, in return for a donation or admission fee, limited amounts of alcohol which is ancillary to the main event. It would be a light-touch alternative to the normal licensing regime, which applies to businesses selling much higher quantities of alcohol. The normal regime requires a premises licence (costing £100 to £1900) and accompanying personal licence application fee of around £75, or multiple temporary event notices at £21 each, which are limited to 12 per year at each premises.

    Community groups will be able to name up to three premises at which they intend to provide alcohol at organised events, with a maximum of 300 attendees. The alcohol can be sold only between 7am and 11pm, and must be ancillary to the main purpose of the event; the example given is a glass of wine at a play or with a lunch.

    The CAN is also intended for low-risk businesses, defined initially only as b&b providers and similar small overnight accommodation providers. The rules for them will be different from those for community groups.

    The CAN would last three years. The aim is to keep the fee as low as possible, and certainly below that of a premises licence fee.

    The Home Office consulted from 11 November to 9 December 2014 on the details of issues such as exact limits on the amount of alcohol that can be served and any exceptions, the definition of qualifying community groups, eligible business types (including the maximum size), the frequency of permitted events, and details of the fee. The consultation documents, including a two-page factsheet about the proposed changes, can be accessed on the Gov.uk website via tinyurl.com/md3h2yw.

    The Deregulation Bill is currently going through Parliament and can be accessed via tinyurl.com/ps3n425.

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    DEREGULATION OF REGULATED ENTERTAINMENT

    Updated 24/11/14. This information updates s.47.4 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    When the Legislative Reform (Entertainment Licensing) Order 2014 (LRO) comes into force, expected 6 April 2015, long-awaited changes to entertainment licensing in England and Wales will finally be in place. This follows several years of piecemeal changes.

    The draft LRO was laid before Parliament on 8 July 2014, following a Department for Culture, Media and Sport consultation from 22 October to 17 December 2013. The consultation documents, draft LRO and detailed explanatory document are on the Gov.uk website via tinyurl.com/o2rassd.

    The Home Office's detailed guidance on which entertainments currently need licences and which are exempt is in chapter 15 of its Licensing Act guidance, amended June 2013, at tinyurl.com/c62zzeh, and will be amended when the LRO comes into effect. The local authority's licensing officer can provide advice for specific premises, events and activities.

    It is important to note that deregulatory measures for regulated entertainment apply only to entertainment licensing (as defined in the Licensing Act 2003, and implemented by the local authority). If alcohol is provided, an alcohol licence may be required. And even where no alcohol or entertainment licence or temporary event notice (TEN) is required, it is likely to be necessary to obtain licences for use of copyright music, film or other works [see PPL and PRS for Music, below].

    Cross-activity exemption
    From 6 April 2015 (expected date), there will be an exemption from all entertainment licensing for entertainment between 8am and 11pm, regardless of audience size, for:

    • entertainment activities held by or on behalf of a local authority, on its own premises;
    • entertainment activities held by or on behalf of a health care provider, on premises forming part of a hospital in which that provider has a relevant property interest or which are occupied by the provider;
    • entertainment activities provided by or on behalf of a school proprietor (except further and higher education, and language schools), on the school's premises.
    The draft legislative reform order [see introduction to this article] sets out in s.4 what is defined as health care provider, hospital, local authority, school, school proprietor and school premises. Domestic premises are excluded.

    The exemption will cover all entertainment regulated under the Licensing Act 2003: performance of a play, exhibition of a film, indoor sporting event, boxing or wrestling entertainment, performance of live music, playing of recorded music, performance of dance, or entertainment of a similar description to live music, recorded music or dance.

    Live and recorded music
    The Live Music Act 2012, which came into effect on 1 October 2012, removed the licensing requirement for many performances of amplified live music or entertainment of a similar description in on-licensed premises and in workplaces, provided they take place between 8am and 11pm and the audience is no more than 200 people. For unamplified live music, there is no audience limit.

    For details of the October 2012 changes, see www.sandy-a.co.uk/vslh/47events.htm. The Live Music Act 2012 is at www.legislation.gov.uk/ukpga/2012/2.

    The Legislative Reform (Entertainment Licensing) Order 2014 [see introduction to this article] will bring in further changes from
    6 April 2015 (expected date):

    • On-licensed premises. The audience limit will be increased from 200 to 500 for amplified live music between 8am and 11pm. The exemption from licensing will be extended to apply to recorded music, for example DJs and discos, between 8am and 11pm and with an audience up to 500.

    • Community premises. For church halls, village halls, community centres and similar community premises (excluding domestic premises) that do not have a licence for the consumption of alcohol on the premises, the exemption from music licensing will be extended to apply to recorded music, and the audience limit will be increased from 200 to 500 for both recorded and amplified live music between 8am and 11pm.

    • Local authority, school and hospital premises. The cross-activity exemption [see above] means that activities run by or on behalf of a local authority, school or hospital, on its own premises, between 8am and 11pm will not require an entertainment licence regardless of type of entertainment and regardless of audience size. But this cross-activity exemption will not apply to activities on these premises that are not provided by or on behalf of the local authority, school or hospital, i.e. activities where the premises are used by an outside organisation or individual(s).

      Where an "outside" activity takes place on local authority, school or hospital premises, it will be exempt from needing an entertainment licence for live and recorded music provided it takes place between 8am and 11pm and the audience is no more than 500, and the local authority, school or hospital has given its consent for the activity.

    • Other workplaces. For workplaces which do not fall into one of the above categories, the audience limit for amplified live music between 8am and 11pm will be increased from 200 to 500. But as far as I can tell, there will still be no licensing exemption for recorded music, regardless of audience size or time of day.

    Community film exhibition
    S.62 of the Deregulation Bill, currently going through Parliament, will remove the need for a licence for not-for-profit film showings in community venues such as community centres and village halls, where the showing takes place between 8am and 11pm and the audience is no more than 500. No date has been set for this change.

    The Department for Culture, Media and Sport consulted from 4 July to 28 August 2013 on this change. The government's response, published on 19 December 2013, is at tinyurl.com/ovdy7fl. The Deregulation Bill is at tinyurl.com/p8em8lq.

    Plays, dance and indoor sport
    Changes announced in January 2013 came into effect on 27 June 2013, removing the requirement for an entertainment licence or temporary event notice (TEN) from:

    • the performance of plays between 8am and 11pm for audiences of no more than 500 people;
    • the performance of dance (with some exceptions) between 8am and 11pm for audiences of no more than 500 people;
    • an indoor sporting event from 8am to 11pm for audiences of no more than 1,000 people (unless it combines boxing or wrestling with one or more martial arts, in which case it must be licensed as a boxing or wrestling entertainment rather than an indoor sporting event).
    The Licensing Act 2003 (Descriptions of Entertainment)(Amendment) Order 2013 is at (www.legislation.gov.uk/uksi/2013/1578/contents/made.

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    PPL & PRS LICENCES FOR PLAYING OR PERFORMING COPYRIGHT MUSIC

    Updated 2/3/14. This information updates s.47.6 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    In addition to any licences which might (or might not) be required under the Licensing Act 2003 [see above], licences to play copyright music are required for public events, and for other public situations such as background music in shops, street performances, festivals, use of music in day centres or for dancing or keep-fit classes, or any other performance of live, recorded or broadcast music which is not within a purely domestic setting. Licences are even required for settings which might not be thought of as public, such as offices and other workplaces.

    The main licences are from the Performing Right Society for Music (PRS for Music) covering the copyright on the music and any lyrics when they are performed or played publicly, and from Phonographic Performance Limited UK (PPL) covering the copyright on the particular performance of the music which is recorded on a record, tape, CD, computer, game or similar or is being broadcast on radio, TV or other media. PRS royalties go to the songwriters, composers and music publishers, and PPL royalties go to the artists, performers and recording companies.

    In addition to PPL and/or PRS for Music, licences may also be required from Video Performance Ltd for music on video or DVD.

    Since 1 January 2012, community buildings run by voluntary organisations have been eligible for a special joint licensing scheme administered by PRS for Music and covering both PPL and PRS for Music licences. Community buildings include community centres, village halls, memorial halls, parochial halls, separate church halls serving the community at large, women's institutes, welfare institutes and comparable premises, where the organisation's "defined income" is not more than £50,000 per year.

    Information about PPL and PRS for Music licences is available from PPL at www.ppluk.com, and PRS for Music at www.prsformusic.com. Note that when the websites refer to businesses, this generally includes charities and other voluntary and not-for-profit organisations. Information about the community buildings licence is available from PRS for Music and from Community Matters at www.communitymatters.org.uk.

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    THE RISKS OF FORGETTING ABOUT LICENCES

    Added 2/3/14. This information updates s.1.9.3 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    It's easy to think about licensing only in relation to alcohol or entertainment, but licences or statutory registration may also be necessary for many other activities, such as providing certain types of advice, selling goods or services on credit, fundraising collections or selling goods in a public place, providing adventure activities — or running a passenger boat.

    Beauchamp Lodge Settlement, a charity which operates a barge as a floating classroom for children and young people, pleaded guilty in January 2014 to operating a passenger vessel in London without a valid passenger certificate. In summing up, the district judge said, "The fact you are a charity does not exempt you from your obligations."

    The barge can hold up to 80 passengers and when not in use as a classroom, is hired out by the charity's linked social enterprise for events such as parties and weddings.

    The Maritime and Coastguard Agency said that between 26 January and 3 July 2013 the vessel had been used 67 times without a certificate, carrying young children on a number of occasions. The charity's chief executive said the lack of certificate was an oversight by management.

    The charity was fined £300 and ordered to pay £3,000 prosecution costs and a £30 victim surcharge.

    The MCA news release is at tinyurl.com/ly7zud2.

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