OPINION: Dare you pick up the poisoned chalice of the FPS?

It’s up to the sector to make the FPS work and failure is not an option. Ian MacQuillin says fundraisers will be damned if they do and damned if they don’t.

Proponents of the Fundraising Preference Service have been telling those who object to it to ‘calm down’ because it’s just a work in progress. At last week’s fundraising summit, we got a chance to see how the FPS is taking shape: so far, it most resembles a poisoned chalice.

So let’s take apart the speeches and presentations from last week to find out what we know about the FPS.

Minister for Civil Society Rob Wilson says that the FPS will happen. The new chair of the working party for the implementation of the FPS – George Kidd – announced that he would not recommend anything that proved unworkable, but also said that the FPS would work, prior to any deliberations his working party makes.

Kidd also outlined a number of issues that are just the start of the questions the working party will have to answer (though presumably ‘will it work?’ won’t be one of them). These were:

Granularity: overrides and opt-outs; sophistication and nuance

How might the “clear requirement” for a reset button be packaged with the “granularity” that allows people to “tailor their context”, wondered Kidd? Speaking earlier in the day, Wilson said he had “no problem” with a preference service that “allowed more nuanced and informed choices” provided it also offered the simple reset. Three options for this granularity that Kidd presented were:

1. Whether FPS would be able to handle “overrides” and “selective opt-outs”.
2. Can a blanket opt out be amended at a later date, such as by giving consent to a named charity?
3. Will registration on FPS be in perpetuity or will it be time-capped?

However, there is an important caveat. Wilson said that any “additional sophistication” (which would seem to mean, additional to the basic reset button) “must not mean significant complexity for the public – or significant delay in delivering the service”.

Small charity exemption…or not

Kidd said the issue of large and small charities “had been raised”. It had been raised earlier by Rob Wilson who said that the working group “should consider exemptions for small charities, who don’t engage in this type of fundraising”.

So that could mean that all small (however defined) charities should be exempt or it could mean that only those small (however defined) charities that were not engaged in ‘that type of fundraising’ (however defined) should be exempt. This would mean that the new Fundraising Regulator (F-Reg) would need to keep tabs on all the small charities to identify when they a) became ‘not small’, or b) started engaging in ‘that type of fundraising’, so they could be added to the list of organisations over which the FPS holds dominion (and presumably removed again once they had stopped doing ‘that type of fundraising’).

However, Wilson then went on to say (“let me be clear”, he said) that the FPS “must give people the simple option to completely reset everything [my italics] should they feel overwhelmed”. So in the same speech, the minister told us that the FPS ought to exempt small charities while simultaneously allowing people to opt out of receiving fundraising materials from them.

Are non-ask comms covered? We thought not, but…

Kidd said the working group would need to consider whether “non-commercial” communications (interesting choice of words – ‘non-commercial’, rather than ‘non-fundraising’) would be caught by the FPS. The general assumption had been that non-ask comms would not be covered by the FPS, but in response to a direct question asking whether charity newsletters would be included, Kidd said it would be up a matter for the working group to decide. Depending on the composition and thought processes of the working group then, opting out of charity newsletters and other non-ask comms might become a possibility. Perhaps when the minister says he wants the FPS to cover “everything”, he really does mean everything, not just fundraising. If that is the case, allow me to be the first to say ‘I told you so’.

Pre-existing relationships – do you want the good news or the bad news?

How would the FPS deal with existing relationships? These are George Kidd’s exact words:

“You put a standing order in place but you then say ‘I don’t want further communications’. Is the standing order still valid? Are further communications now tolerable? Or are they two things that stand alone and can be addressed in separation?”

So on one hand, we have the possibility floated that FPS-registration would not override permission to contact someone with an existing standing order* (and presumably a direct debit too), despite Wilson’s demand that the reset must cover “everything”. This would be brilliant. But on the other, we’ve also had the possibility raised that FPS-registration would actually invalidate a standing order* (and presumably a direct debit).

I am almost 100 per cent certain that George Kidd could not have meant this. Because it would mean that when anyone registered with the FPS, all their direct debits to charities would automatically be cancelled (and FPS would therefore need a way of recording and implementing that change). The harm done to charities and their beneficiaries would be devastating.

The government insists that this is still self-regulation. However, the chair of the new regulator, Lord Grade, has been appointed by the government, and he’s now appointing his own choice of interim ceo, without going through an open recruitment process. The government is leaving no option for the FPS not to be put in place – if, for instance, better ways to protect vulnerable people were found – nor to be put in place without the ‘reset’ facility.

“It’s been suggested that the FPS is heading towards a debacle on the scale of the NHS database.”

But here’s the rub. Having strongly considered statutory regulation this summer, the government decided it didn’t want to do that (read: couldn’t afford it) and so is now getting the third sector to pay for the implementation of the government’s own reforms under the guise of a state-appointed regulator. The government has told the sector exactly what it wants and so you have to deliver that. If you deliver, it is their success; if you fail, it is your failure.

And let’s look at what the sector is being asked to deliver:

A service that allows donors to opt out of receiving all fundraising comms (and possibly ‘everything’) but that allows small charities to carry on contacting those very same people – in case you hadn’t worked it out, this is logically impossible. It must have a blanket reset button. However, if you think you can make it work, you can add layers of nuance and sophistication to allow the public to make more informed choices, such as to opt in to receive comms from certain charities. But you can’t make these too complicated for the public, nor can you take too much time making sure this extra ‘uncomplicated’ complexity works properly. However, the FPS can cost however much you want to spend adding this extra sophistication over and above what the government demands, because, after all, you’re paying for it. If, at the end of the day, the sector fails to deliver, the government will step in and put in place the basic reset function it wanted all along.

“The minister told us that the FPS ought to exempt small charities while simultaneously allowing people to opt out of receiving fundraising materials from them…this is impossible.”

Despite the very reasonable voices on display at the summit last week, and all the talk of a “work in progress”, “working with the sector”, and “avoiding unintended consequences”, the only way the FPS can possibly work with the level of cost-effective simplicity demanded of it is to have a simple reset button only. And if that’s the case then the unintended consequences will become unavoidable. Adding the stuff needed to avoid those unintended consequences will make it too costly, too complex and would take too long to implement. After the summit, consultant Rachel Beer suggested to me that if we embarked down this road it would lead to problems similar to those caused by the failure of the NHS database.

The sector has got itself into a classic damned if you do, damned if you don’t situation. The FPS is unworkable, but you have to make it work, and you will be punished if you don’t.

One option is to simply walk away from the problem and have nothing to do with it. If government wants to bring in unworkable regulation, then let it do so, and let the government take responsibility for whatever consequences follow, whether they be good or bad. The problem with this approach might be that we end up with an FPS that covers charity newsletters and other ‘non-commercial’ communications, and enables mass cancellations of Direct Debits.

The FPS is a poisoned chalice. But can the sector afford not to pick it up?

• Ian MacQuillin is director of Rogare – The Fundraising Think Tank.

* Of course, only the person who sets up the standing order can amend or cancel it, but that would not be the case with a direct debit.

Have your say about the Fundraising Preference Service

Rogare and research consultancy nfpSynergy are hosting an open meeting to discuss the FPS, and specifically how fundraisers might make their voices heard, in central London on Tuesday 15 December. Book a place here.

Further information:

Read Rob Wilson’s speech to the Fundraising Summit.

View the whole summit on NCVO’s website.

Download Rogare’s survey into fundraising opinion on the FPS.