Charities Bill [HL]

Session 2010 - 12
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Other Bills before Parliament

Charities Bill [HL]

Charities Bill [HL]
Part 5 — Information powers
22

(b)
a county council;
(c)
a county borough council;
(d)
a London borough council;
(e)
the Common Council of the City of London.
Power to call for documents and search records
5
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)
relates to any charity, and
10
(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
the Commission or of the official custodian—
15
(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
other documents of a court or of a public or local authority).
20
(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)
relates only to one or more charities, and
25
(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)
This section has effect in relation to any body entered in the Scottish Charity
30
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
without payment to inspect and take copies of or extracts from the records or
35
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
Commission or of the official custodian.
40
(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.

Charities Bill [HL]
Part 5 — Information powers
23

(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)
for a copy or extract to be made of or from it.
5
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
discharge any of its functions.
10
(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)
any local authority,
15
(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
Disclosure to Commission: Revenue and Customs information
20
(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)
an institution which is established for charitable, benevolent or
25
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)
a body entered in the Scottish Charity Register which is managed or
30
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)
a charity is (or is to be treated as) a parent undertaking in accordance
35
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)
For the purposes of the references to a parent undertaking—
40
(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),

Charities Bill [HL]
Part 5 — Information powers
24


“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
2005.
5
(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)
a claim for exemption under Part 11 of the Corporation Tax Act 2010, if
10
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
exemptions to eligible bodies and scientific research
15
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
Commission’s functions if—
20
(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)
Subsection (1) is subject to subsection (3) and section 57(1) and (2).
25
(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)
In this section “relevant public authority” has the same meaning as in section
30
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
disclosed to the Commission under section 54(1).
35
(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
contravention of subsection (2).
40
(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;

Charities Bill [HL]
Part 5 — Information powers
25

(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
believed—
5
(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
months in subsection (4) is to be read as a reference to 6 months.
10
(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)
a member of the Commission,
15
(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)
a member of a committee established by the Commission.
20
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)
References in those sections to the Commission or to any of its functions are to
25
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)
Revenue and Customs information may be disclosed under section
30
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)
In subsection (1)(b) “subsidiary undertaking of the exempt charity”
35
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
of, and Schedule 7 to, the Companies Act 2006, or
40
(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.”

Charities Bill [HL]
Part 5 — Information powers
26

(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
modifications of any enactment as the Minister considers appropriate for
5
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
authorising, or otherwise in connection with, the disclosure of information by
10
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)
a provision of a Measure of the Church Assembly or of the General
15
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
(4)) authorises the making of a disclosure which—
20
(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
Supply of false or misleading information to Commission etc.
25
(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
Act, or
30
(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,

that it would be used by the Commission for the purpose of
35
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)
A person guilty of an offence under this section is liable—
40
(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.

Charities Bill [HL]
Part 6 — Cy-près powers and assistance and supervision of charities by court and Commission
27

(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
Commission
5
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
be applied cy-près, to secure its effective use for charity by taking steps to
10
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
applied cy-près are—
15
(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)
where the original purposes provide a use for part only of the property
20
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,

can be more effectively used in conjunction, and to that end can
25
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
some other purpose, or
30
(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
laid down—
35
(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
method of using the property available by virtue of the gift,
40
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

Charities Bill [HL]
Part 6 — Cy-près powers and assistance and supervision of charities by court and Commission
28

(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
so far as those conditions require a failure of the original purposes.
5
(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)
The court may by scheme made under the court’s jurisdiction with respect to
10
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)
Subsection (5) does not affect the power to make schemes in circumstances
15
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)
to a donor who after—
20
(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,

cannot be identified or cannot be found, or
25
(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
are not liable to any person in respect of the property if no claim by that person
30
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)
But where property is so applied as belonging to donors who cannot be
35
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
within the time limit, to recover from the charity for which the property
40
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
meeting any claims made in accordance with paragraph (b).
45
(5)
For the purposes of subsection (4)(b)—