Charities Bill [HL]

Session 2010 - 12
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Other Bills before Parliament

Charities Bill [HL]

Charities Bill [HL]
Part 6 — Cy-près powers and assistance and supervision of charities by court and Commission
33

Powers of Commission to make schemes etc.
69
Commission’s concurrent jurisdiction with High Court for certain purposes
(1)
The Commission may by order exercise the same jurisdiction and powers as
are exercisable by the High Court in charity proceedings for the following
purposes—
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(a)
establishing a scheme for the administration of a charity;
(b)
appointing, discharging or removing a charity trustee or trustee for a
charity, or removing an officer or employee;
(c)
vesting or transferring property, or requiring or entitling any person to
call for or make any transfer of property or any payment.
10
(2)
Subsection (1) is subject to the provisions of this Act.
(3)
If the court directs a scheme for the administration of a charity to be
established—
(a)
the court may by order refer the matter to the Commission for it to
prepare or settle a scheme in accordance with such directions (if any) as
15
the court sees fit to give, and
(b)
any such order may provide for the scheme to be put into effect by
order of the Commission as if prepared under subsection (1) and
without any further order of the court.
70
Restrictions on Commission’s concurrent jurisdiction
20
(1)
The Commission does not have jurisdiction under section 69 to try or
determine—
(a)
the title at law or in equity to any property as between—
(i)
a charity or trustee for a charity, and
(ii)
a person holding or claiming the property or an interest in it
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adversely to the charity, or
(b)
any question as to the existence or extent of any charge or trust.
(2)
Subject to the following subsections, the Commission must not exercise its
jurisdiction under section 69 as respects any charity except—
(a)
on the application of the charity,
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(b)
on an order of the court under section 69(3), or
(c)
on the application of the Attorney General.
(3)
In the case of a charity whose gross income does not exceed £500 a year, the
Commission may exercise its jurisdiction under section 69 on the application
of—
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(a)
any one or more of the charity trustees,
(b)
any person interested in the charity, or
(c)
any two or more inhabitants of the area of the charity if it is a local
charity.
(4)
Subsection (5) applies where in the case of a charity, other than an exempt
40
charity, the Commission—
(a)
is satisfied that the charity trustees—
(i)
ought in the interests of the charity to apply for a scheme, but
(ii)
have unreasonably refused or neglected to do so, and

Charities Bill [HL]
Part 6 — Cy-près powers and assistance and supervision of charities by court and Commission
34

(b)
has given the charity trustees an opportunity to make representations
to it.
(5)
The Commission—
(a)
may proceed as if an application for a scheme had been made by the
charity, but
5
(b)
may not, where it acts by virtue of this subsection, alter the purposes of
a charity unless 40 years have elapsed from the date of the charity’s
foundation.
(6)
Where—
(a)
a charity cannot apply to the Commission for a scheme because of any
10
vacancy among the charity trustees or the absence or incapacity of any
of them, but
(b)
such an application is made by such number of the charity trustees as
the Commission considers appropriate in the circumstances of the case,

the Commission may nevertheless proceed as if the application were an
15
application made by the charity.
(7)
The Commission may on the application of any charity trustee or trustee for a
charity exercise its jurisdiction under section 69 for the purpose of discharging
the applicant from trusteeship.
(8)
The Commission must not exercise its jurisdiction under section 69 in any case
20
(not referred to it by order of the court) which—
(a)
because of its contentious character, or any special question of law or of
fact which it may involve, or
(b)
for other reasons,

the Commission may consider more fit to be adjudicated on by the court.
25
71
Exercise of Commission’s concurrent jurisdiction: notice
(1)
Before exercising any jurisdiction under section 69 otherwise than on an order
of the court, the Commission must give notice of its intention to do so to each
of the charity trustees except any—
(a)
that cannot be found or has no known address in the United Kingdom,
30
or
(b)
who is party or privy to an application for the exercise of the
jurisdiction.
(2)
Any such notice—
(a)
may be given by post, and
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(b)
if given by post, may be addressed to the recipient’s last known address
in the United Kingdom.
72
Power to alter sum specified in s.70(3)
If the Minister thinks it expedient to do so—
(a)
in consequence of changes in the value of money, or
40
(b)
with a view to increasing the number of charities in respect of which the
Commission may exercise its jurisdiction under section 69 in
accordance with section 70(3),
the Minister may by order amend section 70(3) by substituting a different sum
for the sum for the time being specified there.
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Charities Bill [HL]
Part 6 — Cy-près powers and assistance and supervision of charities by court and Commission
35

73
Powers to make schemes altering provision made by Acts, etc.
(1)
If it appears to the Commission that a scheme should be established for the
administration of a charity, but also—
(a)
that it is necessary or desirable for the scheme—
(i)
to alter the provision made by an Act establishing or regulating
5
the charity, or
(ii)
to make any other provision which goes or might go beyond the
powers exercisable by the Commission apart from this section,
or
(b)
that it is for any reason proper for the scheme to be subject to
10
parliamentary review,

the Commission may (subject to subsection (7)) settle a scheme accordingly
with a view to its being given effect under this section.
(2)
A scheme settled by the Commission under this section may be given effect by
order of the Minister.
15
(3)
Subject to subsections (4) and (6), an order under subsection (2) is subject to
annulment in pursuance of a resolution of either House of Parliament.
(4)
In the case of a scheme which goes beyond the powers exercisable apart from
this section in altering a statutory provision contained in or having effect under
any public general Act, no order may be made unless a draft of the order has
20
been laid before and approved by a resolution of each House of Parliament.
(5)
Subject to subsection (6), any provision of a scheme brought into effect under
this section may be modified or superseded by the court or the Commission as
if it were a scheme brought into effect by order of the Commission under
section 69.
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(6)
Where subsection (4) applies to a scheme, the order giving effect to it—
(a)
may direct that the scheme must not be modified or superseded by a
scheme brought into effect otherwise than under this section, and
(b)
may also direct that subsection (4) is to apply to any scheme modifying
or superseding the scheme to which the order gives effect.
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(7)
The Commission must not proceed under this section without the same
application, and the same notice to the charity trustees, as would be required
if the Commission was proceeding (without an order of the court) under
section 69.
(8)
But on any application for a scheme, or in a case where it acts by virtue of
35
section 70(5) or (6), the Commission may proceed under this section or section
69 as appears to it appropriate.
74
Restriction on expenditure on promoting Bills
(1)
No expenditure incurred in preparing or promoting a Bill in Parliament is to
be defrayed without the consent of the court or the Commission out of any
40
money applicable for the purposes of a charity.
(2)
Subsection (1) applies regardless of anything in the trusts of a charity.
75
Further powers to alter application of charitable property
(1)
Subsection (2) applies where the Commission is satisfied that—

Charities Bill [HL]
Part 6 — Cy-près powers and assistance and supervision of charities by court and Commission
36

(a)
the whole of the income of a charity cannot in existing circumstances be
effectively applied for the purposes of the charity,
(b)
if those circumstances continue, a scheme might be made for applying
the surplus cy-près, and
(c)
it is for any reason not yet desirable to make such a scheme.
5
(2)
The Commission may by order authorise the charity trustees at their discretion
(but subject to any conditions imposed by the order) to apply any accrued or
accruing income for any purposes for which it might be made applicable by
such a scheme.
(3)
Any application of accrued or accruing income authorised by an order under
10
subsection (2) is to be treated as being within the purposes of the charity.
(4)
An order under subsection (2) must not extend—
(a)
to more than £300 out of income accrued before the date of the order,
(b)
to income accruing more than 3 years after that date, or
(c)
to more than £100 out of the income accruing in any of those 3 years.
15
Powers of Commission to act for protection of charities etc.
76
Suspension of trustees etc. and appointment of interim managers
(1)
Subsection (3) applies where, at any time after it has instituted an inquiry
under section 46 with respect to any charity, the Commission is satisfied—
(a)
that there is or has been any misconduct or mismanagement in the
20
administration of the charity, or
(b)
that it is necessary or desirable to act for the purpose of—
(i)
protecting the property of the charity, or
(ii)
securing a proper application for the purposes of the charity of
that property or of property coming to the charity.
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(2)
The reference in subsection (1) to misconduct or mismanagement extends
(regardless of anything in the trusts of the charity) to the employment—
(a)
for the remuneration or reward of persons acting in the affairs of the
charity, or
(b)
for other administrative purposes,
30

of sums which are excessive in relation to the property which is or is likely to
be applied or applicable for the purposes of the charity.
(3)
The Commission may of its own motion do one or more of the following—
(a)
by order suspend any person who is a trustee, charity trustee, officer,
agent or employee of the charity from office or employment pending
35
consideration being given to the person’s removal (whether under
section 79 or 80 or otherwise);
(b)
by order appoint such number of additional charity trustees as it
considers necessary for the proper administration of the charity;
(c)
by order—
40
(i)
vest any property held by or in trust for the charity in the official
custodian,
(ii)
require the persons in whom any such property is vested to
transfer it to the official custodian, or

Charities Bill [HL]
Part 6 — Cy-près powers and assistance and supervision of charities by court and Commission
37

(iii)
appoint any person to transfer any such property to the official
custodian;
(d)
order any person who holds any property on behalf of the charity, or of
any trustee for it, not to part with the property without the approval of
the Commission;
5
(e)
order any debtor of the charity not to make any payment in or towards
the discharge of the debtor’s liability to the charity without the
approval of the Commission;
(f)
by order restrict (regardless of anything in the trusts of the charity) the
transactions which may be entered into, or the nature or amount of the
10
payments which may be made, in the administration of the charity
without the approval of the Commission;
(g)
by order appoint (in accordance with section 78) an interim manager, to
act as receiver and manager in respect of the property and affairs of the
charity.
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(4)
The Commission may not make an order under subsection (3)(a) so as to
suspend a person from office or employment for a period of more than 12
months.
(5)
But any order under subsection (3)(a) made in the case of any person (“P”) may
make provision, as respects the period of P’s suspension for matters arising out
20
of it, and in particular—
(a)
for enabling any person to execute any instrument in P’s name or
otherwise act for P, and
(b)
in the case of a charity trustee, for adjusting any rules governing the
proceedings of the charity trustees to take account of the reduction in
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the number capable of acting.

This does not affect the generality of section 337(1) and (2).
(6)
The Commission—
(a)
must, at such intervals as it thinks fit, review any order made by it
under paragraph (a), or any of paragraphs (c) to (g), of subsection (3),
30
and
(b)
if on any such review it appears to the Commission that it would be
appropriate to discharge the order in whole or in part, must so
discharge it (whether subject to any savings or other transitional
provisions or not).
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77
Offence of contravening certain orders under s.76
(1)
It is an offence for a person to contravene an order under—
(a)
section 76(3)(d) (order prohibiting person from parting with property),
(b)
section 76(3)(e) (order prohibiting debtor of charity from discharging
liability), or
40
(c)
section 76(3)(f) (order restricting transactions or payments).
(2)
A person guilty of an offence under subsection (1) is liable on summary
conviction to a fine not exceeding level 5 on the standard scale.
(3)
This section is not to be treated as precluding the bringing of proceedings for
breach of trust against any charity trustee or trustee for a charity in respect of
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a contravention of an order under section 76(3)(d) or (f) (whether or not
proceedings in respect of the contravention are brought against the trustee
under this section).