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
57

109
Dormant bank accounts: supplementary
(1)
No obligation as to secrecy or other restriction on disclosure (however
imposed) precludes a relevant institution from disclosing any information to
the Commission for the purpose of enabling the Commission to discharge its
functions under sections 107 and 108.
5
(2)
For the purposes of sections 107 and 108 and this section, an account is
dormant if no transaction, other than—
(a)
a transaction consisting in a payment into the account, or
(b)
a transaction which the institution holding the account has itself caused
to be effected,
10

has been effected in relation to the account within the period of 5 years
immediately preceding the date when the Commission is informed as
mentioned in section 107(1)(a).
(3)
For the purposes of sections 107 and 108 and this section, a “relevant
institution” means—
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(a)
the Bank of England,
(b)
a person who has permission under Part 4 of the Financial Services and
Markets Act 2000 to accept deposits,
(c)
an EEA firm of the kind mentioned in paragraph 5(b) of Schedule 3 to
that Act which has permission under paragraph 15 of that Schedule (as
20
a result of qualifying for authorisation under paragraph 12(1) of that
Schedule) to accept deposits, or
(d)
such other person who may lawfully accept deposits in the United
Kingdom as may be prescribed by the Minister.
(4)
In subsection (3), paragraphs (b) to (d) are to be read with—
25
(a)
section 22 of the Financial Services and Markets Act 2000,
(b)
any relevant order under that section, and
(c)
Schedule 2 to that Act.
(5)
For the purposes of sections 107 and 108, references to the transfer of any
amount to a charity are references to its transfer—
30
(a)
to the charity trustees, or
(b)
to any trustee for the charity,

as the charity trustees may determine (and any reference to any amount
received by a charity is to be read accordingly).
(6)
For the purpose of determining the matters in respect of which any of the
35
powers conferred by sections 46 to 53 (inquiries and searches) may be exercised
it is to be assumed that the Commission has no functions under section 107 or
108 in relation to accounts to which this subsection applies.

(This has the result that, for example, a relevant institution is not, in connection
with the Commission’s functions under sections 107 and 108, required under
40
section 47(2)(a) to provide any statements, or answer any questions or
inquiries, with respect to any such accounts held by the institution.)
(7)
Subsection (6) applies to accounts which—
(a)
are dormant accounts by virtue of subsection (2), but
(b)
would not be dormant accounts if subsection (2)(a) were omitted.
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Charities Bill [HL]
Part 6 — Cy-près powers and assistance and supervision of charities by court and Commission
58

Additional powers of Commission
110
Power to give advice
(1)
The Commission may, on the written application of any charity trustee or
trustee for a charity, give the applicant its opinion or advice in relation to any
matter—
5
(a)
relating to the performance of any duties of the applicant, as such a
trustee, in relation to the charity concerned, or
(b)
otherwise relating to the proper administration of the charity.
(2)
A person (“P”) who—
(a)
is a charity trustee or trustee for a charity, and
10
(b)
acts in accordance with any opinion or advice given by the Commission
under subsection (1) (whether to P or another trustee),

is to be treated, as regards P’s responsibility for so acting, as having acted in
accordance with P’s trust.
(3)
But subsection (2) does not apply to P if, when so acting—
15
(a)
P knows or has reasonable cause to suspect that the opinion or advice
was given in ignorance of material facts, or
(b)
a decision of the court or the Tribunal has been obtained on the matter
or proceedings are pending to obtain one.
111
Power to determine membership of charity
20
(1)
The Commission may—
(a)
on the application of a charity, or
(b)
at any time after the institution of an inquiry under section 46 with
respect to a charity,

determine who are the members of the charity.
25
(2)
The Commission’s power under subsection (1) may also be exercised by a
person appointed by the Commission for the purpose.
(3)
In a case within subsection (1)(b) the Commission may, if it thinks fit, so
appoint the person appointed to conduct the inquiry.
112
Power to order assessment of solicitor’s bill
30
(1)
The Commission may order that a solicitor’s bill of costs for business done for
a charity, or for charity trustees or trustees for a charity, is to be assessed,
together with the costs of the assessment—
(a)
by a costs officer in such division of the High Court as may be specified
in the order, or
35
(b)
by the costs officer of any other court having jurisdiction to order the
assessment of the bill.
(2)
On any order under this section for the assessment of a solicitor’s bill—
(a)
the assessment is to proceed,
(b)
the costs officer has the same powers and duties, and
40
(c)
the costs of the assessment are to be borne,

as if the order had been made, on the application of the person chargeable with
the bill, by the court in which the costs are assessed.

Charities Bill [HL]
Part 6 — Cy-près powers and assistance and supervision of charities by court and Commission
59

(3)
No order under this section for the assessment of a solicitor’s bill is to be made
after payment of the bill, unless the Commission is of opinion that it contains
exorbitant charges.
(4)
No order under this section is to be made in any case where the solicitor’s costs
are not subject to assessment on an order of the High Court because of—
5
(a)
an agreement as to the solicitor’s remuneration, or
(b)
the lapse of time since payment of the bill.
Legal proceedings relating to charities
113
Petitions for winding up charities under Insolvency Act
(1)
This section applies where a charity may be wound up by the High Court
10
under the Insolvency Act 1986.
(2)
A petition for the charity to be wound up under the 1986 Act by any court in
England or Wales having jurisdiction may be presented by the Attorney
General, as well as by any person authorised by that Act.
(3)
Such a petition may also be presented by the Commission if, at any time after
15
it has instituted an inquiry under section 46 with respect to the 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.).
(4)
The power exercisable by the Commission by virtue of this section is
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exercisable—
(a)
by the Commission of its own motion, but
(b)
only with the agreement of the Attorney General on each occasion.
114
Proceedings by the Commission
(1)
Subject to subsection (2), the Commission may exercise the same powers with
25
respect to—
(a)
the taking of legal proceedings with reference to charities or the
property or affairs of charities, or
(b)
the compromise of claims with a view to avoiding or ending such
proceedings,
30

as are exercisable by the Attorney General acting ex officio.
(2)
Subsection (1) does not apply to the power of the Attorney General under
section 113(2) to present a petition for the winding up of a charity.
(3)
The practice and procedure to be followed in relation to any proceedings taken
by the Commission under subsection (1) are the same in all respects (and in
35
particular as regards costs) as if they were proceedings taken by the Attorney
General acting ex officio.
(4)
No rule of law or practice is to be treated as requiring the Attorney General to
be a party to any such proceedings.
(5)
The powers exercisable by the Commission by virtue of this section are
40
exercisable—
(a)
by the Commission of its own motion, but

Charities Bill [HL]
Part 6 — Cy-près powers and assistance and supervision of charities by court and Commission
60

(b)
only with the agreement of the Attorney General on each occasion.
115
Proceedings by other persons
(1)
Charity proceedings may be taken with reference to a charity by—
(a)
the charity,
(b)
any of the charity trustees,
5
(c)
any person interested in the charity, or
(d)
if it is a local charity, any two or more inhabitants of the area of the
charity,

but not by any other person.
(2)
Subject to the following provisions of this section, no charity proceedings
10
relating to a charity are to be entertained or proceeded with in any court unless
the taking of the proceedings is authorised by order of the Commission.
(3)
The Commission must not, without special reasons, authorise the taking of
charity proceedings where in its opinion the case can be dealt with by the
Commission under the powers of this Act other than those conferred by section
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114.
(4)
This section does not require an order for the taking of proceedings—
(a)
in a pending cause or matter, or
(b)
for the bringing of any appeal.
(5)
Where subsections (1) to (4) require the taking of charity proceedings to be
20
authorised by an order of the Commission, the proceedings may nevertheless
be entertained or proceeded with if, after the order had been applied for and
refused, leave to take the proceedings was obtained from one of the judges of
the High Court attached to the Chancery Division.
(6)
Nothing in subsections (1) to (5) applies—
25
(a)
to the taking of proceedings by the Attorney General, with or without
a relator, or
(b)
to the taking of proceedings by the Commission in accordance with
section 114.
(7)
If it appears to the Commission, on an application for an order under this
30
section or otherwise, that it is desirable—
(a)
for legal proceedings to be taken with reference to any charity or its
property or affairs, and
(b)
for the proceedings to be taken by the Attorney General,

the Commission must so inform the Attorney General and send the Attorney
35
General such statements and particulars as the Commission thinks necessary
to explain the matter.
(8)
In this section “charity proceedings” means proceedings in any court in
England or Wales brought under—
(a)
the court’s jurisdiction with respect to charities, or
40
(b)
the court’s jurisdiction with respect to trusts in relation to the
administration of a trust for charitable purposes.