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Publicity relating to schemes |
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22 | Relaxation of publicity requirements relating to schemes etc. |
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For section 20 of the 1993 Act substitute— |
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“20 | Publicity relating to schemes |
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(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. |
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| This is subject to any disapplication of those requirements under |
| |
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(2) | The publicity requirements are— |
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(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). |
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(3) | The time when any such notice is given or any such communication |
| |
takes place is to be decided by the Commission. |
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(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 |
| |
| |
(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 |
| |
| |
(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 |
| |
| |
(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 |
| |
| |
| 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. |
| |
|
| |
|
| |
|
(7) | Any public notice of any proposals which is to be given under this |
| |
| |
(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. |
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20A | Publicity for orders relating to trustees or other individuals |
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(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 |
| |
(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 |
| |
| |
(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 |
| |
| |
(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 |
| |
| |
(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 |
| |
| |
| This does not apply if the person cannot be found or has no known |
| |
address in the United Kingdom. |
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(6) | Where the Commission gives notice of any proposals under this |
| 35 |
| |
(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 |
| |
(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. |
| |
|
| |
|
| |
|
(8) | Any notice to be given under subsection (5)— |
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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.” |
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Common investment schemes |
| 5 |
23 | Participation of Scottish and Northern Irish charities in common investment |
| |
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(1) | After section 24(3) of the 1993 Act (common investment schemes) insert— |
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“(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. |
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(3B) | In this section “appropriate body” means— |
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(a) | a Scottish recognised body, or |
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(b) | a Northern Ireland charity, |
| 15 |
| 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. |
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| “The relevant provisions” are subsections (1) and (4) to (6) and (in |
| |
relation only to a charity within paragraph (b)) subsection (7).” |
| 20 |
(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 |
| |
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(3) | At the end of section 25 add— |
| |
“(4) | A common deposit scheme may provide for appropriate bodies to be |
| 25 |
admitted to participate in the scheme (in addition to the participating |
| |
charities) to such extent as the trustees appointed to manage the fund |
| |
| |
(5) | In this section “appropriate body” means— |
| |
(a) | a Scottish recognised body, or |
| 30 |
(b) | a Northern Ireland charity, |
| |
| 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. |
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(6) | “The relevant provisions” are— |
| 35 |
(a) | subsection (1) above, and |
| |
(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.” |
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|
| |
|
| |
|
(4) | After section 25 insert— |
| |
“25A | Meaning of “Scottish recognised body” and “Northern Ireland |
| |
charity” in sections 24 and 25 |
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(1) | In sections 24 and 25 above “Scottish recognised body” means a body— |
| |
(a) | established under the law of Scotland, or |
| 5 |
(b) | managed or controlled wholly or mainly in or from Scotland, |
| |
| to which the Commissioners for Her Majesty’s Revenue and Customs |
| |
have given intimation, which has not subsequently been withdrawn, |
| |
that relief is due under section 505 of the Income and Corporation Taxes |
| |
Act 1988 in respect of income of the body which is applicable and |
| 10 |
applied to charitable purposes only. |
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(2) | In those sections “Northern Ireland charity” means an institution which |
| |
is a charity under the law of Northern Ireland.” |
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(5) | In section 100(4) of the 1993 Act (provisions extending to Northern Ireland) for |
| |
“extends” substitute “and sections 24 to 25A extend”. |
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Advice or other assistance |
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24 | Power to give advice and guidance |
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For section 29 of the 1993 Act substitute— |
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“29 | Power to give advice and guidance |
| |
(1) | The Commission may, on the written application of any charity trustee |
| 20 |
or trustee for a charity, give that person its opinion or advice in relation |
| |
| |
(a) | relating to the performance of any duties of his, as such a |
| |
trustee, in relation to the charity concerned, or |
| |
(b) | otherwise relating to the proper administration of the charity. |
| 25 |
(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 |
| |
his responsibility for so acting, to have acted in accordance with his |
| |
| 30 |
(3) | But subsection (2) above does not apply to a person if, when so acting, |
| |
| |
(a) | he 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 has been obtained on the matter or |
| 35 |
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 |
| |
respect to the administration of charities as it considers appropriate. |
| |
(5) | Any advice or guidance so given may relate to— |
| 40 |
| |
(b) | any class of charities, or |
| |
(c) | any particular charity, |
| |
|
| |
|
| |
|
| and may take such form, and be given in such manner, as the |
| |
Commission considers appropriate.” |
| |
25 | Power to determine membership of charity |
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After section 29 of the 1993 Act (as substituted by section 24 of this Act) insert— |
| |
“29A | Power to determine membership of charity |
| 5 |
| |
(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. |
| 10 |
(2) | The Commission’s power under subsection (1) may also be exercised |
| |
by a person appointed by the Commission for the purpose. |
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(3) | In a case within subsection (1)(b) the Commission may, if it thinks fit, |
| |
so appoint the person appointed to conduct the inquiry.” |
| |
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26 | Power to enter premises and seize documents etc. |
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(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, |
| 20 |
that there are reasonable grounds for believing that each of the |
| |
conditions in subsection (2) below is satisfied. |
| |
| |
(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 |
| 25 |
document or information relevant to that inquiry which the |
| |
Commission could require to be produced or furnished under |
| |
| |
(c) | that, if the Commission were to make an order requiring the |
| |
document or information to be so produced or furnished— |
| 30 |
(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— |
| 35 |
(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 |
| 40 |
subsection (2)(b) above, or to take any other steps which appear |
| |
|
| |
|
| |
|
to be necessary for preserving, or preventing interference with, |
| |
| |
(d) | to take possession of any computer disk or other electronic |
| |
storage device which appears to contain information falling |
| |
within subsection (2)(b), or information contained in a |
| 5 |
document so falling, or to take any other steps which appear to |
| |
be necessary for preserving, or preventing interference with, |
| |
| |
(e) | to take copies of, or extracts from, any documents or |
| |
information falling within paragraph (c) or (d); |
| 10 |
(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; |
| |
(g) | to require any such person to give him such assistance as he |
| |
may reasonably require for the taking of copies or extracts as |
| 15 |
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) | The member of the Commission’s staff who is authorised under such a |
| |
warrant (“the authorised person”) must, if required to do so, produce— |
| 20 |
| |
(b) | documentary evidence that he is a member of the Commission’s |
| |
| |
| for inspection by the occupier of the premises or anyone acting on his |
| |
| 25 |
(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 |
| |
premises, and the names of any such persons; |
| |
(c) | the period for which he (and any such persons) remained on the |
| 30 |
| |
(d) | what he (and any such persons) did while on the premises; and |
| |
(e) | any document or device of which he took possession while |
| |
| |
(7) | If required to do so, the authorised person must give a copy of the |
| 35 |
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 |
| |
| |
(a) | the requirements of subsection (6), and |
| 40 |
(b) | any requirement made under subsection (7) before he leaves the |
| |
| |
(9) | Where possession of any document or device is taken under this |
| |
| |
(a) | the document may be retained for so long as the Commission |
| 45 |
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, |
| |
| |
|
| |
|
| |
|
(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 |
| |
| |
| |
(10) | Once it appears to the Commission that the retention of any document |
| 5 |
or device has ceased to be so necessary, it shall arrange for the |
| |
document or device to be returned as soon as is reasonably |
| |
| |
(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 |
| 10 |
| |
(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 |
| 15 |
(b) | to a fine not exceeding level 5 on the standard scale, |
| |
| |
(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) |
| 20 |
56A | The power of seizure conferred by section 31A(3) of the Charities Act |
| |
1993 (seizure of material for the purposes of an inquiry under section |
| |
| |
Mortgages of charity land |
| |
27 | Restrictions on mortgaging |
| 25 |
(1) | Section 38 of the 1993 Act (restrictions on mortgaging) is amended as follows. |
| |
(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 |
| 30 |
matters or matter mentioned in subsection (3) or (3A) below (as the case |
| |
| |
(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 |
| 35 |
trustees to be able to pursue the particular course of action in |
| |
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 |
| |
| 40 |
(c) | the ability of the charity to repay on those terms the sum |
| |
proposed to be paid by way of loan or grant. |
| |
|
| |
|