Session 2010 - 12
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Charities Bill [HL]


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

38

 

78      

Interim managers: supplementary

(1)   

The Commission may under section 76(3)(g) appoint to be interim manager in

respect of a charity such person (other than a member of its staff) as it thinks fit.

(2)   

An order made by the Commission under section 76(3)(g) may make provision

with respect to the functions to be discharged by the interim manager

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appointed by the order.

   

This does not affect the generality of section 337(1) and (2).

(3)   

Those functions are to be discharged by the interim manager under the

supervision of the Commission.

(4)   

In connection with the discharge of those functions, an order under section

10

76(3)(g) may provide—

(a)   

for the interim manager appointed by the order to have such powers

and duties of the charity trustees of the charity concerned (whether

arising under this Act or otherwise) as are specified in the order;

(b)   

for any powers or duties specified by virtue of paragraph (a) to be

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exercisable or performed by the interim manager to the exclusion of

those trustees.

(5)   

Where a person has been appointed interim manager by any such order—

(a)   

section 110 (power to give advice and guidance) applies to the interim

manager and the interim manager’s functions as it applies to a charity

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trustee of the charity concerned and to the charity trustee’s duties as

such, and

(b)   

the Commission may apply to the High Court for directions in relation

to any particular matter arising in connection with the discharge of

those functions.

25

(6)   

The High Court may on an application under subsection (5)(b)—

(a)   

give such directions, or

(b)   

make such orders declaring the rights of any persons (whether before

the court or not),

   

as it thinks just.

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(7)   

The costs of an application under subsection (5)(b) must be paid by the charity

concerned.

(8)   

Regulations made by the Minister may make provision with respect to—

(a)   

the appointment and removal of persons appointed in accordance with

this section;

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(b)   

the remuneration of such persons out of the income of the charities

concerned;

(c)   

the making of reports to the Commission by such persons.

(9)   

Regulations under subsection (8) may, in particular, authorise the

Commission—

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(a)   

to require security for the due discharge of the functions of a person so

appointed to be given by that person;

(b)   

to determine the amount of such a person’s remuneration;

(c)   

to disallow any amount of remuneration in such circumstances as are

prescribed by the regulations.

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

39

 

79      

Removal of trustee or officer etc. for protective etc. purposes

(1)   

Subsection (2) applies where, at any time after it has instituted an inquiry

under section 46 with respect to any charity, the Commission is satisfied both

as mentioned in section 76(1)(a) (misconduct or mismanagement etc.) and as

mentioned in section 76(1)(b) (need to protect property etc.).

5

(2)   

The Commission may of its own motion do either or both of the following—

(a)   

by order remove any trustee, charity trustee, officer, agent or employee

of the charity—

(i)   

who has been responsible for or privy to the misconduct or

mismanagement, or

10

(ii)   

whose conduct contributed to it or facilitated it;

(b)   

by order establish a scheme for the administration of the charity.

80      

Other powers to remove or appoint charity trustees

(1)   

The Commission may remove a charity trustee by order made of its own

motion if—

15

(a)   

within the last 5 years, the trustee—

(i)   

having previously been adjudged bankrupt, has been

discharged, or

(ii)   

having previously made a composition or arrangement with, or

granted a trust deed for, creditors, has been discharged in

20

respect of it;

(b)   

the trustee is a corporation in liquidation;

(c)   

the trustee is incapable of acting because of mental disorder within the

meaning of the Mental Health Act 1983;

(d)   

the trustee has not acted, and will not make a declaration of willingness

25

or unwillingness to act;

(e)   

the trustee—

(i)   

is outside England and Wales or cannot be found, or

(ii)   

does not act,

   

and the trustee’s absence or failure to act impedes the proper

30

administration of the charity.

(2)   

The Commission may by order made of its own motion appoint a person to be

a charity trustee—

(a)   

in place of a charity trustee removed by the Commission under section

79 or subsection (1) or otherwise;

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(b)   

if there are no charity trustees, or if because of vacancies in their

number or the absence or incapacity of any of their number the charity

cannot apply for the appointment;

(c)   

if there is a single charity trustee who is not a corporation aggregate and

the Commission is of opinion that it is necessary to increase the number

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for the proper administration of the charity;

(d)   

if the Commission is of opinion that it is necessary for the proper

administration of the charity to have an additional charity trustee

because one of the existing charity trustees who ought nevertheless to

remain a charity trustee—

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(i)   

is outside England and Wales or cannot be found, or

(ii)   

does not act.

 
 

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

40

 

(3)   

In subsection (1)(a)(i), the reference to the trustee having been adjudged

bankrupt includes a reference to the trustee’s estate having been sequestrated.

(4)   

This section does not apply in relation to an exempt charity except at a time

after the Commission has instituted an inquiry under section 46 with respect to

it.

5

81      

Removal or appointment of charity trustees etc.: supplementary

(1)   

The powers of the Commission under sections 76, 79 and 80 to remove or

appoint charity trustees of its own motion include power to make any such

order with respect to the vesting in or transfer to the charity trustees of any

property as the Commission could make on the removal or appointment of a

10

charity trustee by it under section 69 (Commission’s concurrent jurisdiction

with High Court for certain purposes).

(2)   

Any order under any of those sections or this section—

(a)   

for the removal or appointment of a charity trustee or trustee for a

charity, or

15

(b)   

for the vesting or transfer of any property,

   

has the same effect as an order made under section 69.

(3)   

Subsection (1) does not apply in relation to an exempt charity except at a time

after the Commission has instituted an inquiry under section 46 with respect to

it.

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82      

Removal of trustees etc.: notice

(1)   

Before exercising any jurisdiction by virtue of section 79 or 80, the Commission

must give notice of its intention to do so to each of the charity trustees, except

any that cannot be found or has no known address in the United Kingdom.

(2)   

Any such notice—

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(a)   

may be given by post, and

(b)   

if given by post, may be addressed to the recipient’s last known address

in the United Kingdom.

83      

Power to suspend or remove trustees etc. from membership of charity

(1)   

Subsection (2) applies where—

30

(a)   

the Commission makes an order under section 76(3) suspending from

office or employment a person who is a trustee, charity trustee, officer,

agent or employee of a charity, and

(b)   

the person is a member of the charity.

(2)   

The Commission may also make an order suspending the person’s

35

membership of the charity for the period for which the person is suspended

from office or employment.

(3)   

Subsection (4) applies where—

(a)   

the Commission makes an order under section 79(2) removing from

office or employment a person who is an officer, agent or employee of

40

a charity, and

(b)   

the person is a member of the charity.

 
 

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

41

 

(4)   

The Commission may also make an order—

(a)   

terminating the person’s membership of the charity, and

(b)   

prohibiting the person from resuming membership of the charity

without the Commission’s consent.

(5)   

If an application for the Commission’s consent under subsection (4)(b) is made

5

5 years or more after the order was made, the Commission must grant the

application unless satisfied that, because of any special circumstances, it

should be refused.

84      

Power to direct specified action to be taken

(1)   

This section applies where, at any time after the Commission has instituted an

10

inquiry under section 46 with respect to any charity, it is satisfied either as

mentioned in section 76(1)(a) (misconduct or mismanagement etc.) or as

mentioned in section 76(1)(b) (need to protect property etc.).

(2)   

The Commission may by order direct—

(a)   

the charity trustees,

15

(b)   

any trustee for the charity,

(c)   

any officer or employee of the charity, or

(d)   

(if a body corporate) the charity itself,

   

to take any action specified in the order which the Commission considers to be

expedient in the interests of the charity.

20

(3)   

An order under this section—

(a)   

may require action to be taken whether or not it would otherwise be

within the powers exercisable by the person or persons concerned, or

by the charity, in relation to the administration of the charity or to its

property, but

25

(b)   

may not require any action to be taken which is prohibited by any Act

or expressly prohibited by the trusts of the charity or is inconsistent

with its purposes.

(4)   

Anything done by a person or body under the authority of an order under this

section is to be treated as properly done in the exercise of the powers

30

mentioned in subsection (3)(a).

(5)   

Subsection (4) does not affect any contractual or other rights arising in

connection with anything which has been done under the authority of such an

order.

85      

Power to direct application of charity property

35

(1)   

This section applies where the Commission is satisfied—

(a)   

that a person or persons in possession or control of any property held

by or on trust for a charity is or are unwilling to apply it properly for

the purposes of the charity, and

(b)   

that it is necessary or desirable to make an order under this section for

40

the purpose of securing a proper application of that property for the

purposes of the charity.

(2)   

The Commission may by order direct the person or persons concerned to apply

the property in such manner as is specified in the order.

 
 

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

42

 

(3)   

An order under this section—

(a)   

may require action to be taken whether or not it would otherwise be

within the powers exercisable by the person or persons concerned in

relation to the property, but

(b)   

may not require any action to be taken which is prohibited by any Act

5

or expressly prohibited by the trusts of the charity.

(4)   

Anything done by a person under the authority of an order under this section

is to be treated as properly done in the exercise of the powers mentioned in

subsection (3)(a).

(5)   

Subsection (4) does not affect any contractual or other rights arising in

10

connection with anything which has been done under the authority of such an

order.

86      

Copy of certain orders, and reasons, to be sent to charity

(1)   

Where the Commission makes an order under a provision mentioned in

subsection (2) it must send the documents mentioned in subsection (3)—

15

(a)   

to the charity concerned (if a body corporate), or

(b)   

(if not) to each of the charity trustees.

(2)   

The provisions are—

section 76 (suspension of trustees etc. and appointment of interim

managers);

20

section 79 (removal of trustee or officer etc. for protective etc. purposes);

section 80 (other powers to remove or appoint charity trustees);

section 81 (removal or appointment of charity trustees etc.:

supplementary);

section 83 (power to suspend or remove trustees etc. from membership of

25

charity);

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

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

(3)   

The documents are—

(a)   

a copy of the order, and

30

(b)   

a statement of the Commission’s reasons for making it.

(4)   

The documents must be sent to the charity or charity trustees as soon as

practicable after the making of the order.

(5)   

The Commission need not comply with subsection (4) in relation to the

documents, or (as the case may be) the statement of its reasons, if it considers

35

that to do so—

(a)   

would prejudice any inquiry or investigation, or

(b)   

would not be in the interests of the charity;

   

but, once the Commission considers that this is no longer the case, it must send

the documents, or (as the case may be) the statement, to the charity or charity

40

trustees as soon as practicable.

(6)   

Nothing in this section requires any document to be sent to a person who—

(a)   

cannot be found, or

(b)   

has no known address in the United Kingdom.

 
 

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

43

 

(7)   

Any documents required to be sent to a person under this section may be sent

to, or otherwise served on, the person in the same way as an order made by the

Commission under this Act could be served on the person in accordance with

section 339.

87      

Supervision by Commission of certain Scottish charities

5

(1)   

Sections 76 to 82 (except section 79(2)(b)) and sections 84 to 86 have effect in

relation to any body which—

(a)   

is entered in the Scottish Charity Register, and

(b)   

is managed or controlled wholly or mainly in or from England or

Wales,

10

   

as they have effect in relation to a charity.

(2)   

Subsection (3) applies where—

(a)   

a body entered in the Scottish Charity Register is managed or

controlled wholly or mainly in or from Scotland, but

(b)   

any person in England and Wales holds any property on behalf of the

15

body or of any person concerned in its management or control.

(3)   

If the Commission is satisfied, on the basis of such information as may be

supplied to it by the Scottish Charity Regulator, as to the matters mentioned in

subsection (4), it may make an order requiring the person holding the property

not to part with it without the Commission’s approval.

20

(4)   

The matters are—

(a)   

that there has been any misconduct or mismanagement in the

administration of the body, and

(b)   

that it is necessary or desirable to make an order under subsection (3)

for the purpose of protecting the property of the body or securing a

25

proper application of such property for the purposes of the body.

(5)   

Subsection (6) applies where—

(a)   

any person in England and Wales holds any property on behalf of a

body entered in the Scottish Charity Register or of any person

concerned in the management or control of such a body, and

30

(b)   

the Commission is satisfied (whether on the basis of such information

as may be supplied to it by the Scottish Charity Regulator or

otherwise)—

(i)   

that there has been any misconduct or mismanagement in the

administration of the body, and

35

(ii)   

that it is necessary or desirable to make an order under

subsection (6) for the purpose of protecting the property of the

body or securing a proper application of such property for the

purposes of the body.

(6)   

The Commission may by order—

40

(a)   

vest the property in such body or charity as is specified in the order in

accordance with subsections (7) and (8),

(b)   

require any persons in whom the property is vested to transfer it to any

such body or charity, or

(c)   

appoint any person to transfer the property to any such body or charity.

45

(7)   

The Commission may specify in an order under subsection (6)—

 
 

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

44

 

(a)   

such other body entered in the Scottish Charity Register, or

(b)   

such charity,

   

as it considers appropriate, if the purposes of the body or charity are, in the

opinion of the Commission, as similar in character to those of the body referred

to in subsection (5)(a) as is reasonably practicable.

5

(8)   

But the Commission must not so specify any body or charity unless it has

received from—

(a)   

the persons concerned in the management or control of the body, or

(b)   

(as the case may be) the charity trustees of the charity,

   

written confirmation that they are willing to accept the property.

10

Publicity relating to schemes and orders

88      

Publicity relating to schemes

(1)   

The Commission may not—

(a)   

make any order under this Act to establish a scheme for the

administration of a charity, or

15

(b)   

submit such a scheme to the court or the Minister for an order giving it

effect,

   

unless, before doing so, the Commission has complied with the publicity

requirements in subsection (2).

   

This is subject to any disapplication of those requirements under subsection

20

(4).

(2)   

The publicity requirements are—

(a)   

that the Commission must give public notice of its proposals, inviting

representations to be made to it within a period specified in the notice,

and

25

(b)   

that, in the case of a scheme relating to a local charity (other than an

ecclesiastical charity) in a parish, or in a community in Wales, the

Commission must communicate a draft of the scheme to—

(i)   

the parish council or, if the parish has no council, the chairman

of the parish meeting, or

30

(ii)   

the community council or, if the community has no council, the

county council or county borough council.

(3)   

The time when any such notice is given or any such communication takes place

is to be decided by the Commission.

(4)   

The Commission may determine that either or both of the publicity

35

requirements is or are not to apply in relation to a particular scheme if it is

satisfied that—

(a)   

because of the nature of the scheme, or

(b)   

for any other reason,

   

compliance with the requirement or requirements is unnecessary.

40

(5)   

Where the Commission gives public notice of any proposals under this

section—

(a)   

it must take into account any representations made to it within the

period specified in the notice, and

 
 

 
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