The Information Commissioner has criticised the Institute of Fundraising and large charities for believing they were “above the law” on telephone fundraising, but has rejected the idea of a Fundraising Preference Service.

Christopher Graham, the Information Commissioner, was giving evidence to the Public Administration and Constitutional Affairs Committee this morning alongside the ICO’s head of enforcement Steve Eckersley.

He said that several charities had been warned about breaches of the TPS more than a year before the current scandal.

And he warned that the FPS would be a distraction and said it could not be enforced by the ICO, and called instead for the ICO to have its powers strengthened.

Breaches of TPS a concern in 2014

“We were concerned about some of the big charities ignoring the Telephone Preference Service,” he said. “We wrote to eight major charities in March 2014.”

Graham did not specify which charities they were, but said he believed some were the ones criticised in the Daily Mail earlier this year.

He added: “We had drawn their attention to the fact that the Telephone Preference Service could not be overwritten without prior consent.”

Graham told MPs that the ICO was not aware of the scale of the problem because “we had relatively few complaints” but has now discovered that the FRSB was getting 50,000 complaints.

“If we had that level of complaints we certainly would have been on the case,” he told MPs.

The ICO is now in the process of setting up a memorandum of understanding with the FRSB.

“We must never again have a situation where the FRSB, or whatever follows it, is aware of complaints and we as the back stop regulator with the statutory power to deal with it are not aware,” he said.

Charities were looking for ‘wiggle room’

Graham said he was “shocked by the nature” of the allegations in the Daily Mail this summer. And that after meeting the sector “became increasingly concerned that the evidence was that charity fundraisers believed that somehow they were above the law and a special case”.

He added that when he met with Institute of Fundraising and major charities following the scandal they wanted “to see whether there was some wiggle room”.

Referring to the Institute of Fundraising’s recent update of its Code of Fundraising Practices to fall in line the ICO’s direct marketing guidance in 2013, Graham said he was “disappointed” that it took so long.

FPS would be a ‘confusion’

Since discussions in the summer with the IoF and others Graham believes that “charities are coming to heel” and that the “problem is being dealt with”.

He said that introducing a Fundraising Preference Service would make things “less clear” and “be a confusion” as the ICO would not be able to enforce it.

“TPS is something I can enforce,” he said. Instead he said there should be statutory underpinning of ICO’s guidance around direct marketing to make it harder to ignore.

“There should not have been any dispute that direct marketing guidance applied to charities” he said, and that statutory underpinning “might have helped”.

Eckersley was unable to say when he was likely to publish the findings of the investigations into charities’ use of data but assured MPs that the ICO would act if it found they had broken criminal or civil law.

Graham also said that the ICO should do more mystery shopping and  “look for trouble” rather than rely on complaints it receives.