|
| |
|
36 | Claims and objections to registration |
| |
(1) | A person who is or may be affected by the registration of an institution as a |
| |
charity may, on the ground that it is not a charity— |
| |
(a) | object to its being entered by the Commission in the register, or |
| |
(b) | apply to the Commission for it to be removed from the register. |
| 5 |
(2) | Provision may be made by regulations made by the Minister as to the manner |
| |
in which any such objection or application is to be made, prosecuted or dealt |
| |
| |
(3) | Subsection (4) applies if there is an appeal to the Tribunal against any decision |
| |
| 10 |
(a) | to enter an institution in the register, or |
| |
(b) | not to remove an institution from the register. |
| |
(4) | Until the Commission is satisfied whether the decision of the Commission is or |
| |
is not to stand, the entry in the register— |
| |
(a) | is to be maintained, but |
| 15 |
(b) | is in suspense and must be marked to indicate that it is in suspense. |
| |
(5) | Any question affecting the registration or removal from the register of an |
| |
| |
(a) | may be considered afresh by the Commission, even though it has been |
| |
determined by a decision on appeal under Chapter 2 of Part 17 (appeals |
| 20 |
and applications to Tribunal), and |
| |
(b) | is not concluded by that decision, if it appears to the Commission that— |
| |
(i) | there has been a change of circumstances, or |
| |
(ii) | the decision is inconsistent with a later judicial decision. |
| |
Effect of registration and right to inspect register |
| 25 |
37 | Effect of registration |
| |
(1) | An institution is, for all purposes other than rectification of the register, |
| |
conclusively presumed to be or to have been a charity at any time when it is or |
| |
| |
(2) | For the purposes of subsection (1) an institution is to be treated as not being on |
| 30 |
the register during any period when the entry relating to it is in suspense under |
| |
| |
38 | Right to inspect register |
| |
(1) | The register (including the entries cancelled when institutions are removed |
| |
from the register) must be open to public inspection at all reasonable times. |
| 35 |
(2) | If any information contained in the register is not in documentary form, |
| |
subsection (1) is to be read as requiring the information to be available for |
| |
public inspection in legible form at all reasonable times. |
| |
(3) | If the Commission so determines, subsection (1) does not apply to any |
| |
particular information contained in the register that is specified in the |
| 40 |
| |
|
| |
|
| |
|
(4) | Copies (or particulars) of the trusts of any registered charity as supplied to the |
| |
Commission under section 35 (duties of trustees in connection with |
| |
registration) must, so long as the charity remains on the register— |
| |
(a) | be kept by the Commission, and |
| |
(b) | be open to public inspection at all reasonable times. |
| 5 |
(5) | If a copy of a document relating to a registered charity— |
| |
(a) | is not required to be supplied to the Commission as the result of section |
| |
| |
(b) | is in the Commission’s possession, |
| |
| a copy of the document must be open to inspection under subsection (4) as if |
| 10 |
supplied to the Commission under section 35. |
| |
Disclosure of registered charity status |
| |
39 | Statement required to be made in official publications etc. |
| |
(1) | This section applies to a registered charity if its gross income in its last financial |
| |
| 15 |
(2) | If this section applies to a registered charity, the fact that it is a registered |
| |
charity must be stated in legible characters— |
| |
(a) | in all notices, advertisements and other documents issued by or on |
| |
behalf of the charity and soliciting money or other property for the |
| |
| 20 |
(b) | in all bills of exchange, promissory notes, endorsements, cheques and |
| |
orders for money or goods purporting to be signed on behalf of the |
| |
| |
(c) | in all bills rendered by it and in all its invoices, receipts and letters of |
| |
| 25 |
(3) | The statement required by subsection (2) must be in English, except that, in the |
| |
case of a document which is otherwise wholly in Welsh, the statement may be |
| |
in Welsh if it consists of or includes “elusen cofrestredig” (the Welsh equivalent |
| |
of “registered charity”). |
| |
(4) | Subsection (2)(a) has effect— |
| 30 |
(a) | whether the solicitation is express or implied, and |
| |
(b) | whether or not the money or other property is to be given for any |
| |
| |
40 | Power to alter sum specified in s.39(1) |
| |
The Minister may by order amend section 39(1) by substituting a different sum |
| 35 |
for the sum for the time being specified there. |
| |
| |
(1) | It is an offence for a person, in the case of a registered charity to which section |
| |
39 applies, to issue or authorise the issue of any document falling within |
| |
section 39(2)(a) or (c) which does not contain the statement required by section |
| 40 |
| |
|
| |
|
| |
|
(2) | It is an offence for a person, in the case of a registered charity to which section |
| |
39 applies, to sign any document falling within section 39(2)(b) which does not |
| |
contain the statement required by section 39(2). |
| |
(3) | A person guilty of an offence under subsection (1) or (2) is liable on summary |
| |
conviction to a fine not exceeding level 3 on the standard scale. |
| 5 |
Power to require charity’s name to be changed |
| |
42 | Power to require name to be changed |
| |
(1) | If this subsection applies to a charity, the Commission may give a direction |
| |
requiring the name of the charity to be changed, within such period as is |
| |
specified in the direction, to such other name as the charity trustees may |
| 10 |
determine with the approval of the Commission. |
| |
(2) | Subsection (1) applies to a charity if— |
| |
(a) | it is a registered charity and its name (“the registered name”)— |
| |
| |
(ii) | is in the opinion of the Commission too like, |
| 15 |
| the name, at the time when the registered name was entered in the |
| |
register in respect of the charity, of any other charity (whether |
| |
| |
(b) | the name of the charity is in the opinion of the Commission likely to |
| |
mislead the public as to the true nature of— |
| 20 |
(i) | the purposes of the charity as set out in its trusts, or |
| |
(ii) | the activities which the charity carries on under its trusts in |
| |
pursuit of those purposes, |
| |
(c) | the name of the charity includes any word or expression for the time |
| |
being specified in regulations made by the Minister and the inclusion |
| 25 |
in its name of that word or expression is in the opinion of the |
| |
Commission likely to mislead the public in any respect as to the status |
| |
| |
(d) | the name of the charity is in the opinion of the Commission likely to |
| |
give the impression that the charity is connected in some way with Her |
| 30 |
Majesty’s Government or any local authority, or with any other body of |
| |
persons or any individual, when it is not so connected, or |
| |
(e) | the name of the charity is in the opinion of the Commission offensive. |
| |
(3) | Any direction given by virtue of subsection (2)(a) must be given within 12 |
| |
months of the time when the registered name was entered in the register in |
| 35 |
| |
(4) | In subsection (2) any reference to the name of a charity is, in relation to a |
| |
registered charity, a reference to the name by which it is registered. |
| |
(5) | Any direction given under this section with respect to a charity must be given |
| |
| 40 |
43 | Duty of charity trustees on receiving direction under s.42 |
| |
(1) | On receiving a direction under section 42 the charity trustees must give effect |
| |
to it regardless of anything in the trusts of the charity. |
| |
|
| |
|
| |
|
(2) | If the name of any charity is changed by virtue of section 42, the charity trustees |
| |
must without delay notify the Commission of— |
| |
(a) | the charity’s new name, and |
| |
(b) | the date on which the change occurred. |
| |
(3) | Subsection (2) does not affect section 35(3) (duty of charity trustees to notify |
| 5 |
changes in registered particulars). |
| |
44 | Change of name not to affect existing rights and obligations etc. |
| |
A change of name by a charity by virtue of section 42 does not affect any rights |
| |
or obligations of the charity; and any legal proceedings that might have been |
| |
continued or commenced by or against it in its former name may be continued |
| 10 |
or commenced by or against it in its new name. |
| |
45 | Change of name where charity is a company |
| |
(1) | In relation to a charitable company, any reference in section 42 or 43 to the |
| |
charity trustees of a charity is to be read as a reference to the directors of the |
| |
| 15 |
(2) | Subsections (3) to (5) apply if a direction is given under section 42 with respect |
| |
| |
(3) | The direction is to be treated as requiring the name of the company to be |
| |
changed by resolution of the directors of the company. |
| |
(4) | Where a resolution of the directors is passed in accordance with subsection (3), |
| 20 |
the company must give notice of the change to the registrar of companies. |
| |
(5) | Where the name of the company is changed in compliance with the direction, |
| |
the registrar of companies must— |
| |
(a) | if satisfied that the new name complies with the requirements of Part 5 |
| |
of the Companies Act 2006, enter the new name on the register of |
| 25 |
companies in place of the former name, and |
| |
(b) | issue a certificate of incorporation altered to meet the circumstances of |
| |
| |
| and the change of name has effect from the date on which the altered certificate |
| |
| 30 |
| |
| |
Inquiries instituted by Commission |
| |
46 | General power to institute inquiries |
| |
(1) | The Commission may from time to time institute inquiries with regard to |
| 35 |
charities or a particular charity or class of charities, either generally or for |
| |
| |
(2) | But no such inquiry is to extend to any exempt charity except where this has |
| |
been requested by its principal regulator. |
| |
| 40 |
|
| |
|
| |
|
(a) | conduct such an inquiry itself, or |
| |
(b) | appoint a person to conduct it and make a report to the Commission. |
| |
(4) | This section and sections 47 to 49 (obtaining evidence and search warrants) |
| |
have effect in relation to a body entered in the Scottish Charity Register which |
| |
is managed or controlled wholly or mainly in or from England or Wales as they |
| 5 |
have effect in relation to a charity. |
| |
47 | Obtaining evidence etc. for purposes of inquiry |
| |
(1) | In this section “inquiry” means an inquiry under section 46. |
| |
(2) | For the purposes of an inquiry, the Commission, or a person appointed by the |
| |
Commission to conduct it, may direct any person— |
| 10 |
(a) | if a matter in question at the inquiry is one on which the person has or |
| |
can reasonably obtain information— |
| |
(i) | to provide accounts and statements in writing with respect to |
| |
the matter, or to return answers in writing to any questions or |
| |
inquiries addressed to the person on the matter, and |
| 15 |
(ii) | to verify any such accounts, statements or answers by statutory |
| |
| |
(b) | to provide copies of documents which are in the custody or under the |
| |
control of the person and which relate to any matter in question at the |
| |
inquiry, and to verify any such copies by statutory declaration; |
| 20 |
(c) | to attend at a specified time and place and give evidence or produce |
| |
| |
| But this is subject to the provisions of this section. |
| |
(3) | For the purposes of an inquiry— |
| |
(a) | evidence may be taken on oath, and the person conducting the inquiry |
| 25 |
may for that purpose administer oaths, or |
| |
(b) | the person conducting the inquiry may instead of administering an |
| |
oath require the person examined to make and subscribe a declaration |
| |
of the truth of the matters about which that person is examined. |
| |
(4) | The Commission may pay to any person attending to give evidence or produce |
| 30 |
documents for the purpose of an inquiry the necessary expenses of doing so. |
| |
(5) | A direction under subsection (2)(c) may not require a person to go more than |
| |
10 miles from the person’s place of residence unless those expenses are paid or |
| |
| |
48 | Power to obtain search warrant for purposes of inquiry |
| 35 |
(1) | A justice of the peace may issue a warrant under this section if satisfied, on |
| |
information given on oath by a member of the Commission’s staff, that there |
| |
are reasonable grounds for believing that each of the conditions in subsection |
| |
| |
| 40 |
(a) | that an inquiry has been instituted under section 46, |
| |
(b) | that there is on the premises to be specified in the warrant any |
| |
document or information relevant to that inquiry which the |
| |
Commission could require to be produced or provided under section |
| |
| 45 |
|
| |
|
| |
|
(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 |
| |
with, concealed or destroyed. |
| 5 |
(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 |
| |
needed to assist P in doing anything that P is authorised to do under the |
| 10 |
| |
(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 |
| |
| 15 |
(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 |
| |
interference with, any such information; |
| 20 |
(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 |
| |
information may be found; |
| 25 |
(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 |
| |
| |
49 | Execution of search warrant |
| |
(1) | Entry and search under a warrant under section 48 must be at a reasonable |
| 30 |
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— |
| |
| |
(b) | documentary evidence that P is a member of the Commission’s staff, |
| 35 |
| for inspection by the occupier of the premises or anyone acting on the |
| |
| |
(3) | P must make a written record of— |
| |
(a) | the date and time of P’s entry on the premises, |
| |
(b) | the number of persons (if any) who accompanied P on to the premises |
| 40 |
and the names of any such persons, |
| |
(c) | the period for which P (and any such persons) remained on the |
| |
| |
(d) | what P (and any such persons) did while on the premises, and |
| |
(e) | any document or device of which P took possession while there. |
| 45 |
(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. |
| |
|
| |
|
| |
|
(5) | Unless it is not reasonably practicable to do so, P must before leaving the |
| |
| |
(a) | the requirements of subsection (3), and |
| |
(b) | any requirement made under subsection (4) before P leaves the |
| |
| 5 |
(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) | the device may be retained for so long as the Commission considers |
| 10 |
that it is necessary to retain it for the purposes of that inquiry, |
| |
| |
(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 |
| |
device to be returned as soon as is reasonably practicable— |
| 15 |
(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 |
| |
| |
| For the purposes of this subsection as it has effect by virtue of section 46(4), the |
| |
reference in paragraph (b) to the charity trustees of the charity is to be read as |
| 20 |
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) | A person guilty of an offence under subsection (8) is liable on summary |
| 25 |
| |
(a) | to imprisonment for a term not exceeding 51 weeks, or |
| |
(b) | to a fine not exceeding level 5 on the standard scale, |
| |
| |
50 | Publication of results of inquiries |
| 30 |
(1) | This section applies where an inquiry has been held under section 46. |
| |
| |
(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 |
| |
be printed and published, or |
| 35 |
(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 | Contributions by local authorities to inquiries into local charities |
| 40 |
(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— |
| |
| |
|
| |
|