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Charities Bill [HL]


Charities Bill [HL]
Part 2 — Regulation of charities
Chapter 5 — Assistance and supervision of charities by court and Commission

22

 

Publicity relating to schemes

22      

Relaxation of publicity requirements relating to schemes etc.

For section 20 of the 1993 Act substitute—

“20     

Publicity relating to schemes

(1)   

The Commission may not—

5

(a)   

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

administration of a charity, or

(b)   

submit such a scheme to the court or the Secretary of State for

an order giving it effect,

   

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

10

publicity requirements in subsection (2) below.

   

This is subject to any disapplication of those requirements under

subsection (4) below.

(2)   

The publicity requirements are—

(a)   

that the Commission must give public notice of its proposals,

15

inviting representations to be made to it within a period

specified in the notice; and

(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 the

20

parish or community council (or, where a parish has no council,

to the chairman of the parish meeting).

(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

25

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

it is satisfied that—

(a)   

by reason of the nature of the scheme, or

(b)   

for any other reason,

   

compliance with the requirement or requirements is unnecessary.

30

(5)   

Where the Commission gives public notice of any proposals under this

section, the Commission—

(a)   

must take into account any representations made to it within

the period specified in the notice, and

(b)   

may (without further notice) proceed with the proposals either

35

without modifications or with such modifications as it thinks

desirable.

(6)   

Where the Commission makes an order under this Act to establish a

scheme for the administration of a charity, a copy of the order must be

available, for at least a month after the order is published, for public

40

inspection at all reasonable times—

(a)   

at the Commission’s office, and

(b)   

if the charity is a local charity, at some convenient place in the

area of the charity.

   

Paragraph (b) does not apply if the Commission is satisfied that for any

45

reason it is unnecessary for a copy of the scheme to be available locally.

 
 

Charities Bill [HL]
Part 2 — Regulation of charities
Chapter 5 — Assistance and supervision of charities by court and Commission

23

 

(7)   

Any public notice of any proposals which is to be given under this

section—

(a)   

is to contain such particulars of the proposals, or such directions

for obtaining information about them, as the Commission

thinks sufficient and appropriate, and

5

(b)   

is to be given in such manner as the Commission thinks

sufficient and appropriate.

20A     

Publicity for orders relating to trustees or other individuals

(1)   

The Commission may not make any order under this Act to appoint,

discharge or remove a charity trustee or trustee for a charity, other

10

than—

(a)   

an order relating to the official custodian, or

(b)   

an order under section 18(1)(ii) above,

   

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

publicity requirement in subsection (2) below.

15

   

This is subject to any disapplication of that requirement under

subsection (4) below.

(2)   

The publicity requirement is that the Commission must give public

notice of its proposals, inviting representations to be made to it within

a period specified in the notice.

20

(3)   

The time when any such notice is given is to be decided by the

Commission.

(4)   

The Commission may determine that the publicity requirement is not

to apply in relation to a particular order if it is satisfied that for any

reason compliance with the requirement is unnecessary.

25

(5)   

Before the Commission makes an order under this Act to remove

without his consent—

(a)   

a charity trustee or trustee for a charity, or

(b)   

an officer, agent or employee of a charity,

   

the Commission must give him not less than one month’s notice of its

30

proposals, inviting representations to be made to it within a period

specified in the notice.

   

This does not apply if the person cannot be found or has no known

address in the United Kingdom.

(6)   

Where the Commission gives notice of any proposals under this

35

section, the Commission—

(a)   

must take into account any representations made to it within

the period specified in the notice, and

(b)   

may (without further notice) proceed with the proposals either

without modifications or with such modifications as it thinks

40

desirable.

(7)   

Any notice of any proposals which is to be given under this section—

(a)   

is to contain such particulars of the proposals, or such directions

for obtaining information about them, as the Commission

thinks sufficient and appropriate, and

45

(b)   

(in the case of a public notice) is to be given in such manner as

the Commission thinks sufficient and appropriate.

 
 

Charities Bill [HL]
Part 2 — Regulation of charities
Chapter 5 — Assistance and supervision of charities by court and Commission

24

 

(8)   

Any notice to be given under subsection (5)—

(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.”

Common investment schemes

5

23      

Participation of Scottish and Northern Irish charities in common investment

schemes etc.

(1)   

After section 24(3) of the 1993 Act (common investment schemes) insert—

“(3A)   

A common investment scheme may provide for appropriate bodies to

be admitted to participate in the scheme (in addition to the

10

participating charities) to such extent as the trustees appointed to

manage the fund may determine.

(3B)   

In this section “appropriate body” means—

(a)   

a recognised body within the meaning of Part 1 of the Law

Reform (Miscellaneous Provisions) (Scotland) Act 1990, or

15

(b)   

a charity within the meaning of the Charities Act (Northern

Ireland) 1964,

   

and, in the application of the relevant provisions in relation to a scheme

which contains provisions authorised by subsection (3A) above,

“charity” includes an appropriate body.

20

   

“The relevant provisions” are subsections (1) and (4) to (6) and (in

relation only to a charity within paragraph (b)) subsection (7).”

(2)   

In section 25(2) of that Act (application of provisions of section 24 to common

deposit funds) for “subsections (2) to (4)” substitute “subsections (2), (3) and

(4)”.

25

(3)   

At the end of section 25 add—

“(4)   

A common deposit scheme may provide for appropriate bodies to be

admitted to participate in the scheme (in addition to the participating

charities) to such extent as the trustees appointed to manage the fund

may determine.

30

(5)   

In this section “appropriate body” means—

(a)   

a recognised body within the meaning of Part 1 of the Law

Reform (Miscellaneous Provisions) (Scotland) Act 1990, or

(b)   

a charity within the meaning of the Charities Act (Northern

Ireland) 1964,

35

   

and, in the application of the relevant provisions in relation to a scheme

which contains provisions authorised by subsection (4) above,

“charity” includes an appropriate body.

(6)   

“The relevant provisions” are—

(a)   

subsection (1) above, and

40

(b)   

subsections (4) and (6) of section 24 above, as they apply in

accordance with subsections (2) and (3) above, and

(c)   

(in relation only to a charity within subsection (5)(b) above)

subsection (7) of that section, as it so applies.”

 
 

Charities Bill [HL]
Part 2 — Regulation of charities
Chapter 5 — Assistance and supervision of charities by court and Commission

25

 

(4)   

In section 100(4) of the 1993 Act (provisions extending to Northern Ireland) for

“extends” substitute “and sections 24 and 25 extend”.

Advice or other assistance

24      

Power to give advice and guidance

For section 29 of the 1993 Act substitute—

5

“29     

Power to give advice and guidance

(1)   

The Commission may, on the written application of any charity trustee

or trustee for a charity, give that person its opinion or advice in relation

to any matter—

(a)   

relating to the performance of any duties of his, as such a

10

trustee, in relation to the charity concerned, or

(b)   

otherwise relating to the proper administration of the charity.

(2)   

A charity trustee or trustee for a charity who acts in accordance with

any opinion or advice given by the Commission under subsection (1)

above (whether to him or to another trustee) is to be taken, as regards

15

his responsibility for so acting, to have acted in accordance with his

trust.

(3)   

But subsection (2) above does not apply to a person if, when so acting,

either—

(a)   

he knows or has reasonable cause to suspect that the opinion or

20

advice was given in ignorance of material facts, or

(b)   

a decision of the court has been obtained on the matter or

proceedings are pending to obtain one.

(4)   

The Commission may, in connection with its second general function

mentioned in section 1C(2) above, give such advice or guidance with

25

respect to the administration of charities as it considers appropriate.

(5)   

Any advice or guidance so given may relate to—

(a)   

charities generally,

(b)   

any class of charities, or

(c)   

any particular charity,

30

   

and may take such form, and be given in such manner, as the

Commission considers appropriate.”

25      

Power to determine membership of charity

After section 29 of the 1993 Act (as substituted by section 24 of this Act) insert—

“29A    

Power to determine membership of charity

35

(1)   

The Commission may—

(a)   

on the application of a charity, or

(b)   

at any time after the institution of an inquiry under section 8

above with respect to a charity,

   

determine who are the members of the charity.

40

 
 

Charities Bill [HL]
Part 2 — Regulation of charities
Chapter 5 — Assistance and supervision of charities by court and Commission

26

 

(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.”

Powers of entry

5

26      

Power to enter premises and seize documents etc.

(1)   

After section 31 of the 1993 Act insert—

“31A    

Power to enter premises

(1)   

A justice of the peace may issue a warrant under this section if satisfied,

on information given on oath by a member of the Commission’s staff,

10

that there are reasonable grounds for believing that each of the

conditions in subsection (2) below is satisfied.

(2)   

The conditions are—

(a)   

that an inquiry has been instituted under section 8 above;

(b)   

that there is on the premises to be specified in the warrant any

15

document or information relevant to that inquiry which the

Commission could require to be produced or furnished under

section 9(1) above; and

(c)   

that, if the Commission were to make an order requiring the

document or information to be so produced or furnished—

20

(i)   

the order would not be complied with, or

(ii)   

the document or information would be removed,

tampered with, concealed or destroyed.

(3)   

A warrant under this section is a warrant authorising the member of the

Commission’s staff who is named in it—

25

(a)   

to enter and search the premises specified in it;

(b)   

to take such other persons with him as the Commission

considers are needed to assist him in doing anything that he is

authorised to do under the warrant;

(c)   

to take possession of any documents which appear to fall within

30

subsection (2)(b) above, or to take any other steps which appear

to be necessary for preserving, or preventing interference with,

any such documents;

(d)   

to take possession of any computer disk or other electronic

storage device which appears to contain information falling

35

within subsection (2)(b), or information contained in a

document so falling, or to take any other steps which appear to

be necessary for preserving, or preventing interference with,

any such information;

(e)   

to take copies of, or extracts from, any documents or

40

information falling within paragraph (c) or (d);

(f)   

to require any person on the premises to provide an explanation

of any such document or information or to state where any such

documents or information may be found;

 
 

Charities Bill [HL]
Part 2 — Regulation of charities
Chapter 5 — Assistance and supervision of charities by court and Commission

27

 

(g)   

to require any such person to give him such assistance as he

may reasonably require for the taking of copies or extracts as

mentioned in paragraph (e) above.

(4)   

Entry and search under such a warrant must be at a reasonable hour

and within one month of the date of its issue.

5

(5)   

The member of the Commission’s staff who is authorised under such a

warrant (“the authorised person”) must, if required to do so, produce—

(a)   

the warrant, and

(b)   

documentary evidence that he is a member of the Commission’s

staff,

10

   

for inspection by the occupier of the premises or anyone acting on his

behalf.

(6)   

The authorised person must make a written record of—

(a)   

the date and time of his entry on the premises;

(b)   

the number of persons (if any) who accompanied him onto the

15

premises, and the names of any such persons;

(c)   

the period for which he (and any such persons) remained on the

premises;

(d)   

what he (and any such persons) did while on the premises; and

(e)   

any document or device of which he took possession while

20

there.

(7)   

If required to do so, the authorised person must give a copy of the

record to the occupier of the premises or someone acting on his behalf.

(8)   

Unless it is not reasonably practicable to do so, the authorised person

must comply with the following requirements before leaving the

25

premises, namely—

(a)   

the requirements of subsection (6), and

(b)   

any requirement made under subsection (7) before he leaves the

premises.

(9)   

Where possession of any document or device is taken under this

30

section—

(a)   

the document may be retained for so long as the Commission

considers that it is necessary to retain it (rather than a copy of it)

for the purposes of the relevant inquiry under section 8 above,

or

35

(b)   

the device may be retained for so long as the Commission

considers that it is necessary to retain it for the purposes of that

inquiry,

   

as the case may be.

(10)   

Once it appears to the Commission that the retention of any document

40

or device has ceased to be so necessary, it shall arrange for the

document or device to be returned as soon as is reasonably

practicable—

(a)   

to the person from whose possession it was taken, or

(b)   

to any of the charity trustees of the charity to which it belonged

45

or related.

 
 

Charities Bill [HL]
Part 2 — Regulation of charities
Chapter 5 — Assistance and supervision of charities by court and Commission

28

 

(11)   

A person who intentionally obstructs the exercise of any rights

conferred by a warrant under this section is guilty of an offence and

liable on summary conviction—

(a)   

to imprisonment for a term not exceeding 51 weeks, or

(b)   

to a fine not exceeding level 5 on the standard scale,

5

   

or to both.”

(2)   

In Part 1 of Schedule 1 to the Criminal Justice and Police Act 2001 (c. 16)

(powers of seizure to which section 50 applies), after paragraph 56 insert—

“Charities Act 1993 (c. 10)

56A        

The power of seizure conferred by section 31A(3) of the Charities Act

10

1993 (seizure of material for the purposes of an inquiry under section

8 of that Act).”

Mortgages of charity land

27      

Restrictions on mortgaging

(1)   

Section 38 of the 1993 Act (restrictions on mortgaging) is amended as follows.

15

(2)   

For subsections (2) and (3) substitute—

“(2)   

Subsection (1) above shall not apply to a mortgage of any such land if

the charity trustees have, before executing the mortgage, obtained and

considered proper advice, given to them in writing, on the relevant

matters or matter mentioned in subsection (3) or (3A) below (as the case

20

may be).

(3)   

In the case of a mortgage to secure the repayment of a proposed loan or

grant, the relevant matters are—

(a)   

whether the loan or grant is necessary in order for the charity

trustees to be able to pursue the particular course of action in

25

connection with which they are seeking the loan or grant;

(b)   

whether the terms of the loan or grant are reasonable having

regard to the status of the charity as the prospective recipient of

the loan or grant; and

(c)   

the ability of the charity to repay on those terms the sum

30

proposed to be paid by way of loan or grant.

(3A)   

In the case of a mortgage to secure the discharge of any other proposed

obligation, the relevant matter is whether it is reasonable for the charity

trustees to undertake to discharge the obligation, having regard to the

charity’s purposes.

35

(3B)   

Subsection (3) or (as the case may be) subsection (3A) above applies in

relation to such a mortgage as is mentioned in that subsection whether

the mortgage—

(a)   

would only have effect to secure the repayment of the proposed

loan or grant or the discharge of the proposed obligation, or

40

(b)   

would also have effect to secure the repayment of sums paid by

way of loan or grant, or the discharge of other obligations

undertaken, after the date of its execution.

 
 

 
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