Charities Bill (HC Bill 257)

Charities BillPage 20

(c) that, if the Commission were to make an order requiring the document
or information to be so produced or provided—

(i) the order would not be complied with, or

(ii) the document or information would be removed, tampered
5with, concealed or destroyed.

(3) A warrant under this section is a warrant authorising the member of the
Commission’s staff who is named in it (“P”)—

(a) to enter and search the premises specified in it;

(b) to take such other persons with P as the Commission considers are
10needed to assist P in doing anything that P is authorised to do under the
warrant;

(c) to take possession of any documents which appear to fall within
subsection (2)(b), or to take any other steps which appear to be
necessary for preserving, or preventing interference with, any such
15documents;

(d) to take possession of any computer disk or other electronic storage
device which appears to contain information falling within subsection
(2)(b), or information contained in a document so falling, or to take any
other steps which appear to be necessary for preserving, or preventing
20interference with, any such information;

(e) to take copies of, or extracts from, any documents or information falling
within paragraph (c) or (d);

(f) to require any person on the premises to provide an explanation of any
such document or information or to state where any such documents or
25information may be found;

(g) to require any such person to give P such assistance as P may
reasonably require for the taking of copies or extracts as mentioned in
paragraph (e).

49 Execution of search warrant

(1) 30Entry and search under a warrant under section 48 must be at a reasonable
hour and within one month of the date of its issue.

(2) The member of the Commission’s staff who is authorised under such a warrant
(“P”) must, if required to do so, produce—

(a) the warrant, and

(b) 35documentary evidence that P is a member of the Commission’s staff,

for inspection by the occupier of the premises or anyone acting on the
occupier’s behalf.

(3) P must make a written record of—

(a) the date and time of P’s entry on the premises,

(b) 40the number of persons (if any) who accompanied P on to the premises
and the names of any such persons,

(c) the period for which P (and any such persons) remained on the
premises,

(d) what P (and any such persons) did while on the premises, and

(e) 45any document or device of which P took possession while there.

(4) If required to do so, P must give a copy of the record to the occupier of the
premises or someone acting on the occupier’s behalf.

Charities BillPage 21

(5) Unless it is not reasonably practicable to do so, P must before leaving the
premises comply with—

(a) the requirements of subsection (3), and

(b) any requirement made under subsection (4) before P leaves the
5premises.

(6) Where possession of any document or device is taken under section 48—

(a) the document may be retained for so long as the Commission considers
that it is necessary to retain it (rather than a copy of it) for the purposes
of the relevant inquiry under section 46, or

(b) 10the device may be retained for so long as the Commission considers
that it is necessary to retain it for the purposes of that inquiry,

as the case may be.

(7) Once it appears to the Commission that the retention of any document or
device has ceased to be so necessary, it must arrange for the document or
15device to be returned as soon as is reasonably practicable—

(a) to the person from whose possession it was taken, or

(b) to any of the charity trustees of the charity to which it belonged or
related.

For the purposes of this subsection as it has effect by virtue of section 46(4), the
20reference in paragraph (b) to the charity trustees of the charity is to be read as
a reference to the persons having the general control and management of the
administration of the body entered in the Scottish Charity Register.

(8) It is an offence for a person intentionally to obstruct the exercise of any rights
conferred by a warrant under section 48.

(9) 25A person guilty of an offence under subsection (8) is liable on summary
conviction—

(a) to imprisonment for a term not exceeding 51 weeks, or

(b) to a fine not exceeding level 5 on the standard scale,

or to both.

50 30Publication of results of inquiries

(1) This section applies where an inquiry has been held under section 46.

(2) The Commission may—

(a) cause the report of the person conducting the inquiry, or such other
statement of the results of the inquiry as the Commission thinks fit, to
35be printed and published, or

(b) publish any such report or statement in some other way which is
calculated in the Commission’s opinion to bring it to the attention of
persons who may wish to make representations to the Commission
about the action to be taken.

51 40Contributions by local authorities to inquiries into local charities

(1) A council may contribute to the expenses of the Commission in connection
with inquiries under section 46 into local charities in the council’s area.

(2) In subsection (1) “council” means—

(a) a district council;

Charities BillPage 22

(b) a county council;

(c) a county borough council;

(d) a London borough council;

(e) the Common Council of the City of London.

5Power to call for documents and search records

52 Power to call for documents

(1) The Commission may by order—

(a) require any person to provide the Commission with any information
which is in that person’s possession and which—

(i) 10relates to any charity, and

(ii) is relevant to the discharge of the functions of the Commission
or of the official custodian;

(b) require any person who has custody or control of any document which
relates to any charity and is relevant to the discharge of the functions of
15the Commission or of the official custodian—

(i) to provide the Commission with a copy of or extract from the
document, or

(ii) to transmit the document itself to the Commission for its
inspection (unless the document forms part of the records or
20other documents of a court or of a public or local authority).

(2) The Commission is entitled without payment to keep any copy or extract
provided to it under subsection (1).

(3) If a document transmitted to the Commission under subsection (1) for it to
inspect—

(a) 25relates only to one or more charities, and

(b) is not held by any person entitled as trustee or otherwise to the custody
of it,

the Commission may keep it or may deliver it to the charity trustees or to any
other person who may be so entitled.

(4) 30This section has effect in relation to any body entered in the Scottish Charity
Register which is managed or controlled wholly or mainly in or from England
or Wales as it has effect in relation to a charity.

53 Power to search records

(1) Any member of the staff of the Commission, if so authorised by it, is entitled
35without payment to inspect and take copies of or extracts from the records or
other documents of—

(a) any court, or

(b) any public registry or office of records,

for any purpose connected with the discharge of the functions of the
40Commission or of the official custodian.

(2) The reference in subsection (1) to a member of the staff of the Commission
includes the official custodian even if not a member of the staff of the
Commission.

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(3) The rights conferred by subsection (1), in relation to information recorded
otherwise than in legible form, include the right to require the information to
be made available in legible form—

(a) for inspection, or

(b) 5for a copy or extract to be made of or from it.

Disclosure of information

54 Disclosure to Commission: general

(1) A relevant public authority may disclose information to the Commission if the
disclosure is made for the purpose of enabling or assisting the Commission to
10discharge any of its functions.

(2) Subsection (1) is subject to section 55.

(3) In this section “relevant public authority” means—

(a) any government department (including a Northern Ireland
department),

(b) 15any local authority,

(c) any constable, and

(d) any other body or person discharging functions of a public nature
(including a body or person discharging regulatory functions in
relation to any description of activities).

55 20Disclosure to Commission: Revenue and Customs information

(1) Revenue and Customs information may be disclosed under section 54(1) only
if it relates to an institution, undertaking or body falling within one (or more)
of the following paragraphs—

(a) a charity;

(b) 25an institution which is established for charitable, benevolent or
philanthropic purposes;

(c) an institution by or in respect of which a claim for tax exemption has at
any time been made;

(d) a subsidiary undertaking of a charity;

(e) 30a body entered in the Scottish Charity Register which is managed or
controlled wholly or mainly in or from England or Wales.

(2) In subsection (1)(d) “subsidiary undertaking of a charity” means an
undertaking (as defined by section 1161(1) of the Companies Act 2006) in
relation to which—

(a) 35a charity is (or is to be treated as) a parent undertaking in accordance
with the provisions of section 1162 of, and Schedule 7 to, the
Companies Act 2006, or

(b) two or more charities would, if they were a single charity, be (or be
treated as) a parent undertaking in accordance with those provisions.

(3) 40For the purposes of the references to a parent undertaking—

(a) in subsection (2), and

(b) in section 1162 of, and Schedule 7 to, the Companies Act 2006 as they
apply for the purposes of subsection (2),

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“undertaking” includes a charity which is not an undertaking as defined by
section 1161(1) of that Act.

(4) In this section “Revenue and Customs information” means information held as
mentioned in section 18(1) of the Commissioners for Revenue and Customs Act
52005.

(5) For the purposes of subsection (1)(c), “claim for tax exemption” means—

(a) a claim for exemption under section 505(1) of the Income and
Corporation Taxes Act 1988,

(b) a claim for exemption under Part 10 of the Income Tax Act 2007, or

(c) 10a claim for exemption under Part 11 of the Corporation Tax Act 2010, if
it is not—

(i) a claim for exemption under section 475, 476 or 477 (reliefs for
eligible bodies and scientific research organisations), or

(ii) a claim made by virtue of section 490 or 491 (application of
15exemptions to eligible bodies and scientific research
organisations).

56 Disclosure by Commission: general

(1) The Commission may disclose to any relevant public authority any
information received by the Commission in connection with any of the
20Commission’s functions if—

(a) the disclosure is made for the purpose of enabling or assisting the
relevant public authority to discharge any of its functions, or

(b) the information so disclosed is otherwise relevant to the discharge of
any of the functions of the relevant public authority.

(2) 25Subsection (1) is subject to subsection (3) and section 57(1) and (2).

(3) In the case of information disclosed to the Commission under section 54(1), the
Commission’s power to disclose the information under subsection (1) is
exercisable subject to any express restriction subject to which the information
was disclosed to the Commission.

(4) 30In this section “relevant public authority” has the same meaning as in section
54, except that it also includes any body or person within section 54(3)(d) in a
country or territory outside the United Kingdom.

57 Disclosure by Commission: Revenue and Customs information

(1) Section 56(3) does not apply in relation to Revenue and Customs information
35disclosed to the Commission under section 54(1).

(2) But any such information may not be further disclosed (whether under section
56(1) or otherwise) except with the consent of the Commissioners for Her
Majesty’s Revenue and Customs.

(3) It is an offence for a responsible person to disclose information in
40contravention of subsection (2).

(4) A person guilty of an offence under subsection (3) is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 12
months or to a fine not exceeding the statutory maximum, or both;

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(b) on conviction on indictment, to imprisonment for a term not exceeding
2 years or to a fine, or both.

(5) It is a defence, where a responsible person is charged with an offence under
subsection (3) of disclosing information, to prove that that person reasonably
5believed—

(a) that the disclosure was lawful, or

(b) that the information had already and lawfully been made available to
the public.

(6) In the application of this section to Northern Ireland, the reference to 12
10months in subsection (4) is to be read as a reference to 6 months.

(7) In this section “Revenue and Customs information” means information held as
mentioned in section 18(1) of the Commissioners for Revenue and Customs Act
2005.

(8) In this section “responsible person” means a person who is or was—

(a) 15a member of the Commission,

(b) a member of the staff of the Commission,

(c) a person acting on behalf of—

(i) the Commission, or

(ii) a member of the staff of the Commission, or

(d) 20a member of a committee established by the Commission.

58 Disclosure to and by principal regulators of exempt charities

(1) Sections 54 to 57 apply with the modifications in subsections (2) to (4) in
relation to the disclosure of information to or by the principal regulator of an
exempt charity.

(2) 25References in those sections to the Commission or to any of its functions are to
be read as references to the principal regulator of an exempt charity or to any
of the functions of that body or person as principal regulator in relation to the
charity.

(3) Section 55 has effect as if for subsections (1) and (2) there were substituted—

(1) 30Revenue and Customs information may be disclosed under section
54(1) only if it relates to—

(a) the exempt charity in relation to which the principal regulator
has functions as such, or

(b) a subsidiary undertaking of the exempt charity.

(2) 35In subsection (1)(b) “subsidiary undertaking of the exempt charity”
means an undertaking (as defined by section 1161(1) of the Companies
Act 2006) in relation to which—

(a) the exempt charity is (or is to be treated as) a parent
undertaking in accordance with the provisions of section 1162
40of, and Schedule 7 to, the Companies Act 2006, or

(b) the exempt charity and one or more other charities would, if
they were a single charity, be (or be treated as) a parent
undertaking in accordance with those provisions.

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(4) Section 57 has effect as if for the definition of “responsible person” in
subsection (8) there were substituted a definition specified by regulations
under section 25 (meaning of “principal regulator”).

(5) Regulations under section 25 may also make such amendments or other
5modifications of any enactment as the Minister considers appropriate for
securing that any disclosure provisions that would otherwise apply in relation
to the principal regulator of an exempt charity do not apply in relation to that
body or person as principal regulator.

(6) In subsection (5) “disclosure provisions” means provisions having effect for
10authorising, or otherwise in connection with, the disclosure of information by
or to the principal regulator concerned.

(7) In subsection (5) “enactment” includes—

(a) any provision of subordinate legislation (within the meaning of the
Interpretation Act 1978), and

(b) 15a provision of a Measure of the Church Assembly or of the General
Synod of the Church of England,

and references to enactments include enactments whenever passed or made.

59 Disclosure: supplementary

Nothing in sections 54 to 57 (or in those sections as applied by section 58(1) to
20(4)) authorises the making of a disclosure which—

(a) contravenes the Data Protection Act 1998, or

(b) is prohibited by Part 1 of the Regulation of Investigatory Powers Act
2000.

Supply of false or misleading information to Commission etc.

60 25Supply of false or misleading information to Commission etc.

(1) It is an offence for a person knowingly or recklessly to provide the Commission
with information which is false or misleading in a material particular if the
information is provided—

(a) in purported compliance with a requirement imposed by or under this
30Act, or

(b) otherwise than as mentioned in paragraph (a) but in circumstances in
which the person providing the information—

(i) intends, or

(ii) could reasonably be expected to know,

35that it would be used by the Commission for the purpose of
discharging its functions under this Act.

(2) It is an offence for a person wilfully to alter, suppress, conceal or destroy any
document which the person is or is liable to be required, by or under this Act,
to produce to the Commission.

(3) 40A person guilty of an offence under this section is liable—

(a) on summary conviction, to a fine not exceeding the statutory
maximum;

(b) on conviction on indictment, to imprisonment for a term not exceeding
2 years or to a fine, or both.

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(4) In this section references to the Commission include references to any person
conducting an inquiry under section 46.

Part 6 Cy-près powers and assistance and supervision of charities by court and
5Commission

Cy-près powers and variation of charters

61 Duty of trustees in relation to application of property cy-près

It is hereby declared that a trust for charitable purposes places a trustee under
a duty, where the case permits and requires the property or some part of it to
10be applied cy-près, to secure its effective use for charity by taking steps to
enable it to be so applied.

62 Occasions for applying property cy-près

(1) Subject to subsection (3), the circumstances in which the original purposes of a
charitable gift can be altered to allow the property given or part of it to be
15applied cy-près are—

(a) where the original purposes, in whole or in part—

(i) have been as far as may be fulfilled, or

(ii) cannot be carried out, or not according to the directions given
and to the spirit of the gift,

(b) 20where the original purposes provide a use for part only of the property
available by virtue of the gift,

(c) where—

(i) the property available by virtue of the gift, and

(ii) other property applicable for similar purposes,

25can be more effectively used in conjunction, and to that end can
suitably, regard being had to the appropriate considerations, be made
applicable to common purposes,

(d) where the original purposes were laid down by reference to—

(i) an area which then was but has since ceased to be a unit for
30some other purpose, or

(ii) a class of persons or an area which has for any reason since
ceased to be suitable, regard being had to the appropriate
considerations, or to be practical in administering the gift, or

(e) where the original purposes, in whole or in part, have, since they were
35laid down—

(i) been adequately provided for by other means,

(ii) ceased, as being useless or harmful to the community or for
other reasons, to be in law charitable, or

(iii) ceased in any other way to provide a suitable and effective
40method of using the property available by virtue of the gift,
regard being had to the appropriate considerations.

(2) In subsection (1) “the appropriate considerations” means—

(a) (on the one hand) the spirit of the gift concerned, and

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(b) (on the other) the social and economic circumstances prevailing at the
time of the proposed alteration of the original purposes.

(3) Subsection (1) does not affect the conditions which must be satisfied in order
that property given for charitable purposes may be applied cy-près except in
5so far as those conditions require a failure of the original purposes.

(4) References in subsections (1) to (3) to the original purposes of a gift are to be
read, where the application of the property given has been altered or regulated
by a scheme or otherwise, as referring to the purposes for which the property
is for the time being applicable.

(5) 10The court may by scheme made under the court’s jurisdiction with respect to
charities, in any case where the purposes for which the property is held are laid
down by reference to any such area as is mentioned in column 1 in Schedule 4,
provide for enlarging the area to any such area as is mentioned in column 2 in
the same entry in that Schedule.

(6) 15Subsection (5) does not affect the power to make schemes in circumstances
falling within subsection (1).

63 Application cy-près: donor unknown or disclaiming

(1) Property given for specific charitable purposes which fail is applicable cy-près
as if given for charitable purposes generally, if it belongs—

(a) 20to a donor who after—

(i) the prescribed advertisements and inquiries have been
published and made, and

(ii) the prescribed period beginning with the publication of those
advertisements has ended,

25cannot be identified or cannot be found, or

(b) to a donor who has executed a disclaimer in the prescribed form of the
right to have the property returned.

(2) Where the prescribed advertisements and inquiries have been published and
made by or on behalf of trustees with respect to any such property, the trustees
30are not liable to any person in respect of the property if no claim by that person
to be interested in it is received by them before the end of the period mentioned
in subsection (1)(a)(ii).

(3) Where property is applied cy-près by virtue of this section, all the donor’s
interest in it is treated as having been relinquished when the gift was made.

(4) 35But where property is so applied as belonging to donors who cannot be
identified or cannot be found, and is not so applied by virtue of section 64
(donors treated as unidentifiable)—

(a) the scheme must specify the total amount of that property,

(b) the donor of any part of that amount is entitled, on making a claim
40within the time limit, to recover from the charity for which the property
is applied a sum equal to that part, less any expenses properly incurred
by the charity trustees after the scheme’s date in connection with claims
relating to the donor’s gift, and

(c) the scheme may include directions as to the provision to be made for
45meeting any claims made in accordance with paragraph (b).

(5) For the purposes of subsection (4)(b)—

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(a) a claim is made with the time limit only if it is made no later than 6
months after the date on which the scheme is made, and

(b) “the scheme’s date” means the date on which the scheme is made.

(6) Subsection (7) applies if—

(a) 5any sum is, in accordance with any directions included in the scheme
under subsection (4)(c), set aside for meeting claims made in
accordance with subsection (4)(b), but

(b) the aggregate amount of any such claims actually made exceeds the
relevant amount;

10and for this purpose “the relevant amount” means the amount of the sum so set
aside after deduction of any expenses properly incurred by the charity trustees
in connection with claims relating to the donors’ gifts.

(7) If the Commission so directs, each of the donors in question is entitled only to
such proportion of the relevant amount as the amount of the donor’s claim
15bears to the aggregate amount referred to in subsection (6)(b).

64 Donors treated as unidentifiable

(1) For the purposes of section 63 property is conclusively presumed (without any
advertisement or inquiry) to belong to donors who cannot be identified, in so
far as it consists of—

(a) 20the proceeds of cash collections made—

(i) by means of collecting boxes, or

(ii) by other means not adapted for distinguishing one gift from
another, or

(b) the proceeds of any lottery, competition, entertainment, sale or similar
25money-raising activity, after allowing for property given to provide
prizes or articles for sale or otherwise to enable the activity to be
undertaken.

(2) The court or the Commission may by order direct that property not falling
within subsection (1) is for the purposes of section 63 to be treated (without any
30advertisement or inquiry) as belonging to donors who cannot be identified if it
appears to the court or the Commission—

(a) that it would be unreasonable, having regard to the amounts likely to
be returned to the donors, to incur expense with a view to returning the
property, or

(b) 35that it would be unreasonable, having regard to the nature,
circumstances and amounts of the gifts, and to the lapse of time since
the gifts were made, for the donors to expect the property to be
returned.

65 Donors treated as disclaiming

(1) 40This section applies to property given—

(a) for specific charitable purposes, and

(b) in response to a solicitation within subsection (2).

(2) A solicitation is within this subsection if—

(a) it is made for specific charitable purposes, and

(b) 45it is accompanied by a statement to the effect that property given in
response to it will, in the event of those purposes failing, be applicable