Session 2010 - 12
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Charities Bill [HL]


Charities Bill [HL]
Part 17 — The Tribunal
Chapter 3 — References to Tribunal

156

 

326     

References by Attorney General

(1)   

A question which involves—

(a)   

the operation of charity law in any respect, or

(b)   

the application of charity law to a particular state of affairs,

   

may be referred to the Tribunal by the Attorney General if the Attorney

5

General considers it desirable to refer the question to the Tribunal.

(2)   

The Attorney General is to be a party to proceedings before the Tribunal on the

reference.

(3)   

The following are entitled to be parties to proceedings before the Tribunal on

the reference—

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(a)   

the Commission, and

(b)   

with the Tribunal’s permission—

(i)   

the charity trustees of any charity which is likely to be affected

by the Tribunal’s decision on the reference,

(ii)   

any such charity which is a body corporate, and

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(iii)   

any other person who is likely to be so affected.

327     

Powers of Commission in relation to matters referred to Tribunal

(1)   

This section applies where a question which involves the application of charity

law to a particular state of affairs has been referred to the Tribunal under

section 325 or 326.

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(2)   

The Commission must not take any steps in reliance on any view as to the

application of charity law to that state of affairs until—

(a)   

proceedings on the reference (including any proceedings on appeal)

have been concluded, and

(b)   

any period during which an appeal (or further appeal) may ordinarily

25

be made has ended.

(3)   

Where—

(a)   

paragraphs (a) and (b) of subsection (2) are satisfied, and

(b)   

the question has been decided in proceedings on the reference,

   

the Commission must give effect to that decision when dealing with the

30

particular state of affairs to which the reference related.

328     

Suspension of time limits while reference is in progress

(1)   

Subsection (2) applies if—

(a)   

section 327(2) prevents the Commission from taking any steps which it

would otherwise be permitted or required to take, and

35

(b)   

the steps in question may be taken only during a period specified in an

enactment (“the specified period”).

(2)   

The running of the specified period is suspended for the period which—

(a)   

begins with the date on which the question is referred to the Tribunal,

and

40

(b)   

ends with the date on which paragraphs (a) and (b) of section 327(2) are

satisfied.

(3)   

Nothing in—

 
 

Charities Bill [HL]
Part 17 — The Tribunal
Chapter 3 — References to Tribunal

157

 

(a)   

this section, or

(b)   

section 271 or 278 (suspension of period during which Commission

may object to resolution of unincorporated charity),

   

prevents the specified period being suspended concurrently by virtue of

subsection (2) and any of the provisions of sections 271 and 278.

5

329     

Agreement for Commission to act while reference is in progress

(1)   

Section 327(2) does not apply in relation to any steps taken by the Commission

with the agreement of—

(a)   

the persons who are parties to the proceedings on the reference at the

time when those steps are taken, and

10

(b)   

(if not within paragraph (a)) the charity trustees of any charity which—

(i)   

is likely to be directly affected by the taking of those steps, and

(ii)   

is not a party to the proceedings at that time.

(2)   

The Commission may take those steps despite the suspension in accordance

with section 328(2) of any period during which it would otherwise be

15

permitted or required to take them.

(3)   

Section 327(3) does not require the Commission to give effect to a decision as

to the application of charity law to a particular state of affairs to the extent that

the decision is inconsistent with any steps already taken by the Commission in

relation to that state of affairs in accordance with this section.

20

330     

Appeals and applications in respect of matters determined on references

(1)   

No appeal or application may be made to the Tribunal by a person to whom

subsection (2) applies in respect of an order or decision made, or direction

given, by the Commission in accordance with section 327(3).

(2)   

This subsection applies to a person who was at any stage a party to the

25

proceedings in which the question referred to the Tribunal was decided.

(3)   

Any enactment (including one contained in this Act) which provides for an

appeal or application to be made to the Tribunal has effect subject to subsection

(1).

331     

Interpretation

30

(1)   

In this Chapter—

“charity law” means—

(a)   

any enactment contained in, or made under, this Act or the

Charities Act 2006,

(b)   

any other enactment specified in regulations made by the

35

Minister , and

(c)   

any rule of law which relates to charities, and

“enactment” includes an enactment comprised in subordinate legislation

(within the meaning of the Interpretation Act 1978), and includes an

enactment whenever passed or made.

40

(2)   

The exclusions contained in section 10(2) (ecclesiastical corporations etc.) do

not have effect for the purposes of this Chapter.

 
 

Charities Bill [HL]
Part 18 — Miscellaneous and supplementary

158

 

Part 18

Miscellaneous and supplementary

Administrative provisions about charities

332     

Manner of giving notice of charity meetings, etc.

(1)   

All notices which are required or authorised by the trusts of a charity to be

5

given to a charity trustee, member or subscriber—

(a)   

may be sent by post, and

(b)   

if sent by post, may be addressed to any address given as the address

of the charity trustee, member or subscriber in the list of such persons

for the time being in use at the office or principal office of the charity.

10

(2)   

Subsections (3) and (4) apply where a notice is required by the trusts of the

charity to be given to a charity trustee, member or subscriber.

(3)   

If the notice is given by post, it is to be treated as having been given by the time

at which the letter containing it would be delivered in the ordinary course of

post.

15

(4)   

If the notice is a notice of any meeting or election, the notice need not be given

to any charity trustee, member or subscriber who, in the list mentioned in

subsection (1)(b), has no address in the United Kingdom.

333     

Conferral of authority to execute documents

(1)   

Charity trustees may, subject to the trusts of the charity, confer on any two or

20

more of their body—

(a)   

a general authority, or

(b)   

an authority limited in such manner as the charity trustees think fit,

   

to execute in the names and on behalf of the charity trustees documents for

giving effect to transactions to which the charity trustees are a party.

25

(2)   

Any document executed in pursuance of an authority under subsection (1) is

of the same effect as if executed by the whole body.

(3)   

An authority under subsection (1)—

(a)   

suffices for any document if it is given in writing or by resolution of a

meeting of the charity trustees, despite the want of any formality that

30

would be required in giving an authority apart from that subsection;

(b)   

may be given so as to make the powers conferred exercisable by any of

the charity trustees, or may be restricted to named persons or in any

other way;

(c)   

subject to any such restriction, and until it is revoked, has effect, despite

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any change in the charity trustees, as a continuing authority given by

the charity trustees from time to time of the charity and exercisable by

such charity trustees.

(4)   

In any authority under this section to execute a document in the names and on

behalf of charity trustees there is, unless the contrary intention appears,

40

implied authority also to execute it for them in the name and on behalf of the

official custodian or of any other person, in any case in which the charity

trustees could do so.

 
 

Charities Bill [HL]
Part 18 — Miscellaneous and supplementary

159

 

(5)   

Where a document purports to be executed in pursuance of this section, then

in favour of a person who (then or afterwards) in good faith acquires for money

or money’s worth—

(a)   

an interest in or charge on property, or

(b)   

the benefit of any covenant or agreement expressed to be entered into

5

by the charity trustees,

   

it is conclusively presumed to have been duly executed by virtue of this

section.

(6)   

The powers conferred by this section are in addition to and not in derogation

of any other powers.

10

334     

Transfer and evidence of title to property vested in trustees

(1)   

Subsection (2) applies where, under the trusts of a charity, trustees of property

held for the purposes of the charity may be appointed or discharged by

resolution of a meeting of the charity trustees, members or other persons.

(2)   

A memorandum declaring a trustee to have been so appointed or discharged

15

is sufficient evidence of that fact if the memorandum—

(a)   

is signed either at the meeting by the person presiding or in some other

manner directed by the meeting, and

(b)   

is attested by two persons present at the meeting.

(3)   

A memorandum evidencing the appointment or discharge of a trustee under

20

subsection (2), if executed as a deed, has the same operation under section 40

of the Trustee Act 1925 (vesting declarations as respects trust property in deeds

appointing or discharging trustees) as if the appointment or discharge were

effected by the deed.

(4)   

For the purposes of this section, where a document purports to have been

25

signed and attested as mentioned in subsection (2), then on proof (whether by

evidence or as a matter of presumption) of the signature the document is

presumed to have been so signed and attested, unless the contrary is shown.

(5)   

This section applies to a memorandum made at any time, except that

subsection (3) applies only to those made on or after 1 January 1961.

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(6)   

This section applies in relation to any institution to which the Literary and

Scientific Institutions Act 1854 applies as it applies in relation to a charity.

(7)   

No vesting or transfer of any property in pursuance of any provision of this

section operates as a breach of a covenant or condition against alienation or

gives rise to a forfeiture.

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Enforcement powers of Commission etc.

335     

Enforcement of requirements by order of Commission

(1)   

If a person fails to comply with any requirement imposed by or under this Act

then (subject to subsection (2)) the Commission may by order give that person

such directions as it considers appropriate for securing that the default is made

40

good.

(2)   

Subsection (1) does not apply to any such requirement if—

 
 

Charities Bill [HL]
Part 18 — Miscellaneous and supplementary

160

 

(a)   

a person who fails to comply with, or is persistently in default in

relation to, the requirement is liable to any criminal penalty, or

(b)   

the requirement is imposed by—

(i)   

an order of the Commission to which section 336 applies, or

(ii)   

a direction of the Commission to which section 336 applies by

5

virtue of section 338(2).

336     

Enforcement of orders of Commission

(1)   

A person guilty of disobedience to an order mentioned in subsection (2) may

on the application of the Commission to the High Court be dealt with as for

disobedience to an order of the High Court.

10

(2)   

The orders are—

(a)   

an order of the Commission under—

section 52(1) (power to call for documents),

section 84 (power to direct specified action to be taken),

section 85 (power to direct application of charity property),

15

section 87 (supervision of certain Scottish charities),

section 155 (power to direct compliance with regulations giving

auditors etc. access to information etc.),

section 184 (civil consequences of acting while disqualified),

section 186 (disqualification of charity trustee or trustee receiving

20

remuneration under section 185),

section 263 (dissolution of incorporated body),

(b)   

an order of the Commission under—

section 69 (concurrent jurisdiction with High Court for certain

purposes), or

25

any of sections 76 and 79 to 81 (powers to act for protection of

charities etc.),

   

requiring a transfer of property or payment to be called for or made, or

(c)   

an order of the Commission requiring a default under this Act to be

made good.

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337     

Other provisions as to orders of Commission

(1)   

Any order made by the Commission under this Act may include such

incidental or supplementary provisions as the Commission thinks expedient

for carrying into effect the objects of the order.

(2)   

Where the Commission exercises any jurisdiction to make an order under this

35

Act on an application or reference to it, it may insert any such provisions in the

order even though the application or reference does not propose their

insertion.

(3)   

Where the Commission makes an order under this Act, the Commission—

(a)   

may itself give such public notice as it thinks fit of the making or

40

contents of the order, or

(b)   

may require it to be given by—

(i)   

any person on whose application the order is made, or

(ii)   

any charity affected by the order.

 
 

Charities Bill [HL]
Part 18 — Miscellaneous and supplementary

161

 

(4)   

The Commission may, with or without any application or reference to it,

discharge an order in whole or in part, and subject or not to any savings or

other transitional provisions, if—

(a)   

it made the order under any provision of this Act other than section 263

(dissolution of incorporated body), and

5

(b)   

at any time within 12 months after it made the order, it is satisfied that

the order was made by mistake or on misrepresentation or otherwise

than in conformity with this Act.

(5)   

Except for the purposes of subsection (4) or an appeal under this Act, an order

made by the Commission under this Act—

10

(a)   

is to be treated as having been duly and formally made, and

(b)   

is not to be called in question on the ground only of irregularity or

informality,

   

but (subject to any further order) has effect according to its tenor.

(6)   

Any order made by the Commission under any provision of this Act may be

15

varied or revoked by a subsequent order so made and may include transitional

provisions or savings.

338     

Directions of the Commission or person conducting inquiry

(1)   

Any direction given by the Commission under any provision of this Act—

(a)   

may be varied or revoked by a further direction given under that

20

provision, and

(b)   

must be given in writing.

(2)   

Sections 336 (enforcement of orders) and 337(1) to (3) and (5) (other provisions

as to orders) apply to any such directions as they apply to an order of the

Commission.

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(3)   

In subsection (1) the reference to the Commission includes, in relation to a

direction under section 47(2) (obtaining evidence etc. for the purposes of an

inquiry), a reference to any person conducting an inquiry under section 46.

(4)   

Nothing in this section is to be read as applying to any directions contained in

an order made by the Commission under section 335(1) (directions for securing

30

that default is made good).

339     

Service of orders and directions

(1)   

This section applies to any order or direction made or given by the

Commission under this Act.

(2)   

Any such order or direction may be served on a person (other than a body

35

corporate) by—

(a)   

delivering it to that person,

(b)   

leaving it at that person’s last known address in the United Kingdom,

or

(c)   

sending it by post to that person at that address.

40

(3)   

Any such order or direction may be served on a body corporate by delivering

it or sending it by post—

(a)   

to the registered or principal office of the body in the United Kingdom,

or

 
 

Charities Bill [HL]
Part 18 — Miscellaneous and supplementary

162

 

(b)   

if it has no such office in the United Kingdom, to any place in the United

Kingdom where it carries on business or conducts its activities (as the

case may be).

(4)   

Any such order or direction may also be served on a person (including a body

corporate) by sending it by post to that person at an address notified by that

5

person to the Commission for the purposes of this subsection.

(5)   

In this section any reference to the Commission includes, in relation to a

direction under section 47(2) (obtaining evidence etc. for the purposes of an

inquiry), a reference to any person conducting an inquiry under section 46.

Documents and evidence etc.

10

340     

Enrolment and deposit of documents etc.

(1)   

The Commission may provide books in which any deed, will or other

document relating to a charity may be enrolled.

(2)   

The Commission may accept for safe keeping any document of or relating to a

charity, and the charity trustees or other persons having the custody of

15

documents of or relating to a charity (including a charity which has ceased to

exist) may with the consent of the Commission deposit them with the

Commission for safe keeping, except in the case of documents required by

some other enactment to be kept elsewhere.

(3)   

Regulations made by the Minister may make provision for such documents

20

deposited with the Commission under this section as may be prescribed by the

regulations to be destroyed or otherwise disposed of after such period or in

such circumstances as may be so prescribed.

(4)   

Subsection (3) applies to any document—

(a)   

transmitted to the Commission under section 52, and

25

(b)   

kept by the Commission under section 52(3),

   

as if the document had been deposited with the Commission for safe keeping

under this section.

(5)   

Subsections (3) and (4) apply (with any necessary adaptations) to documents

enrolled by, deposited with or transmitted to the Charity Commissioners for

30

England and Wales under corresponding previous enactments, including in

particular the Charitable Trusts Act 1853 to 1939.

341     

Evidence of documents received by Commission etc.

(1)   

Subsection (2) applies where a document is enrolled by the Commission or is

for the time being deposited with the Commission under section 340.

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(2)   

Evidence of the document’s contents may be given by means of a copy certified

by any member of the staff of the Commission generally or specially authorised

by the Commission to act for this purpose.

(3)   

A document purporting to be such a copy is to be received in evidence without

proof—

40

(a)   

of the official position, authority or handwriting of the person

certifying it, or

(b)   

of the original document being enrolled or deposited.

 
 

 
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