Office of Public Sector Information
PART 2 continued CHAPTER 3 continued
(9) At the end insert—
“Notes
1 Paragraph (a) above does not include—
(a) any Investment Fund or Deposit Fund within the meaning of the Church Funds Investment Measure 1958,
(b) any investment fund or deposit fund within the meaning of the Methodist Church Funds Act 1960, or
(c) the representative body of the Welsh Church or property administered by it.
2 Paragraph (w) above does not include any students' union.”
(10) In section 24 of the 1993 Act (schemes to establish common investment funds), in subsection (8) (fund is to be a charity and, if the scheme admits only exempt charities, an exempt charity) omit the words from “; and if the scheme” onwards.
(11) The Minister may by order make such further amendments of Schedule 2 to the 1993 Act as he considers appropriate for securing—
(a) that (so far as they are charities) institutions of a particular description become or (as the case may be) cease to be exempt charities, or
(b) that (so far as it is a charity) a particular institution becomes or (as the case may be) ceases to be an exempt charity,
or for removing from that Schedule an institution that has ceased to exist.
(12) An order under subsection (11) may only be made for the purpose mentioned in paragraph (a) or (b) of that subsection if the Minister is satisfied that the order is desirable in the interests of ensuring appropriate or effective regulation of the charities or charity concerned in connection with compliance by the charity trustees of the charities or charity with their legal obligations in exercising control and management of the administration of the charities or charity.
(13) The Minister may by order make such amendments or other modifications of any enactment as he considers appropriate in connection with—
(a) charities of a particular description becoming, or ceasing to be, exempt charities, or
(b) a particular charity becoming, or ceasing to be, an exempt charity,
by virtue of any provision made by or under this section.
(14) In this section “exempt charity” has the same meaning as in the 1993 Act.
The 1993 Act is amended in accordance with Schedule 5 (which has effect for increasing the extent to which exempt charities are subject to regulation under that Act).
(1) This section applies to any body or Minister of the Crown who is the principal regulator in relation to an exempt charity.
(2) The body or Minister must do all that it or he reasonably can to meet the compliance objective in relation to the charity.
(3) The compliance objective is to promote compliance by the charity trustees with their legal obligations in exercising control and management of the administration of the charity.
(4) In this section—
(a) “exempt charity” has the same meaning as in the 1993 Act; and
(b) “principal regulator”, in relation to an exempt charity, means such body or Minister of the Crown as is prescribed as its principal regulator by regulations made by the Minister.
(5) Regulations under subsection (4)(b) may make such amendments or other modifications of any enactment as the Minister considers appropriate for the purpose of facilitating, or otherwise in connection with, the discharge by a principal regulator of the duty under subsection (2).
After section 86 of the 1993 Act insert—
Before exercising in relation to an exempt charity any specific power exercisable by it in relation to the charity, the Commission must consult the charity’s principal regulator.”
(1) Section 13 of the 1993 Act (occasions for applying property cy-près) is amended as follows.
(2) In subsection (1)(c), (d) and (e)(iii), for “the spirit of the gift” substitute “the appropriate considerations”.
(3) After subsection (1) insert—
“(1A) In subsection (1) above “the appropriate considerations” means—
(a) (on the one hand) the spirit of the gift concerned, and
(b) (on the other) the social and economic circumstances prevailing at the time of the proposed alteration of the original purposes.”
(1) Section 14 of the 1993 Act (application cy-près of gifts of donors unknown or disclaiming) is amended as follows.
(2) In subsection (4) (power of court to direct that property is to be treated as belonging to donors who cannot be identified) after “court”, in both places, insert “or the Commission”.
After section 14 of the 1993 Act insert—
(1) This section applies to property given—
(a) for specific charitable purposes, and
(b) in response to a solicitation within subsection (2) below.
(2) A solicitation is within this subsection if—
(a) it is made for specific charitable purposes, and
(b) it is accompanied by a statement to the effect that property given in response to it will, in the event of those purposes failing, be applicable cy-près as if given for charitable purposes generally, unless the donor makes a relevant declaration at the time of making the gift.
(3) A “relevant declaration” is a declaration in writing by the donor to the effect that, in the event of the specific charitable purposes failing, he wishes the trustees holding the property to give him the opportunity to request the return of the property in question (or a sum equal to its value at the time of the making of the gift).
(4) Subsections (5) and (6) below apply if—
(a) a person has given property as mentioned in subsection (1) above,
(b) the specific charitable purposes fail, and
(c) the donor has made a relevant declaration.
(5) The trustees holding the property must take the prescribed steps for the purpose of—
(a) informing the donor of the failure of the purposes,
(b) enquiring whether he wishes to request the return of the property (or a sum equal to its value), and
(c) if within the prescribed period he makes such a request, returning the property (or such a sum) to him.
(6) If those trustees have taken all appropriate prescribed steps but—
(a) they have failed to find the donor, or
(b) the donor does not within the prescribed period request the return of the property (or a sum equal to its value),
section 14(1) above shall apply to the property as if it belonged to a donor within paragraph (b) of that subsection (application of property where donor has disclaimed right to return of property).
(7) If—
(a) a person has given property as mentioned in subsection (1) above,
(b) the specific charitable purposes fail, and
(c) the donor has not made a relevant declaration,
section 14(1) above shall similarly apply to the property as if it belonged to a donor within paragraph (b) of that subsection.
(8) For the purposes of this section—
(a) “solicitation” means a solicitation made in any manner and however communicated to the persons to whom it is addressed,
(b) it is irrelevant whether any consideration is or is to be given in return for the property in question, and
(c) where any appeal consists of both solicitations that are accompanied by statements within subsection (2)(b) and solicitations that are not so accompanied, a person giving property as a result of the appeal is to be taken to have responded to the former solicitations and not the latter, unless he proves otherwise.
(9) In this section “prescribed” means prescribed by regulations made by the Commission, and any such regulations shall be published by the Commission in such manner as it thinks fit.
(10) Subsections (7) and (10) of section 14 shall apply for the purposes of this section as they apply for the purposes of section 14.”
After section 14A of the 1993 Act (inserted by section 17 above) insert—
(1) The power of the court or the Commission to make schemes for the application of property cy-près shall be exercised in accordance with this section.
(2) Where any property given for charitable purposes is applicable cy-près, the court or the Commission may make a scheme providing for the property to be applied—
(a) for such charitable purposes, and
(b) (if the scheme provides for the property to be transferred to another charity) by or on trust for such other charity,
as it considers appropriate, having regard to the matters set out in subsection (3).
(3) The matters are—
(a) the spirit of the original gift,
(b) the desirability of securing that the property is applied for charitable purposes which are close to the original purposes, and
(c) the need for the relevant charity to have purposes which are suitable and effective in the light of current social and economic circumstances.
The “relevant charity” means the charity by or on behalf of which the property is to be applied under the scheme.
(4) If a scheme provides for the property to be transferred to another charity, the scheme may impose on the charity trustees of that charity a duty to secure that the property is applied for purposes which are, so far as is reasonably practicable, similar in character to the original purposes.
(5) In this section references to property given include the property for the time being representing the property originally given or property derived from it.
(6) In this section references to the transfer of property to a charity are references to its transfer—
(a) to the charity, or
(b) to the charity trustees, or
(c) to any trustee for the charity, or
(d) to a person nominated by the charity trustees to hold it in trust for the charity,
as the scheme may provide.”
After section 18 of the 1993 Act insert—
(1) This section applies where the Commission makes—
(a) an order under section 18(1) above suspending from his office or employment any trustee, charity trustee, officer, agent or employee of a charity, or
(b) an order under section 18(2) above removing from his office or employment any officer, agent or employee of a charity,
and the trustee, charity trustee, officer, agent or employee (as the case may be) is a member of the charity.
(2) If the order suspends the person in question from his office or employment, the Commission may also make an order suspending his membership of the charity for the period for which he is suspended from his office or employment.
(3) If the order removes the person in question from his office or employment, the Commission may also make an order—
(a) terminating his membership of the charity, and
(b) prohibiting him from resuming his membership of the charity without the Commission’s consent.
(4) If an application for the Commission’s consent under subsection (3)(b) above is made five years or more after the order was made, the Commission must grant the application unless satisfied that, by reason of any special circumstances, it should be refused.”
After section 19 of the 1993 Act insert—
(1) This section applies where, at any time after the Commission has instituted an inquiry under section 8 above with respect to any charity, it is satisfied as mentioned in section 18(1)(a) or (b) above.
(2) The Commission may by order direct—
(a) the charity trustees,
(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.
(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
(b) may not require any action to be taken which is prohibited by any Act of Parliament 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 shall be deemed to be properly done in the exercise of the powers mentioned in subsection (3)(a) above.
(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.”
After section 19A of the 1993 Act (inserted by section 20 above) insert—
(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 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.
(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 of Parliament or expressly prohibited by the trusts of the charity.
(4) Anything done by a person under the authority of an order under this section shall be deemed to be properly done in the exercise of the powers mentioned in subsection (3)(a) above.
(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.”
For section 20 of the 1993 Act substitute—
(1) The Commission may not—
(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 Minister for an order giving it effect,
unless, before doing so, the Commission has complied with the 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, 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 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 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.
(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 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 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 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 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
(b) is to be given in such manner as the Commission thinks sufficient and appropriate.
(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 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.
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.
(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.
(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 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 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 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
(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)—
(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.”
(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 participating charities) to such extent as the trustees appointed to manage the fund may determine.
(3B) In this section “appropriate body” means—
(a) a Scottish recognised body, or
(b) a Northern Ireland charity,
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.
“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)”.
(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.
(5) In this section “appropriate body” means—
(a) a Scottish recognised body, or
(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.
(6) “The relevant provisions” are—
(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.”
(4) After section 25 insert—
(1) In sections 24 and 25 above “Scottish recognised body” means a body—
(a) established under the law of Scotland, or
(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 applied to charitable purposes only.
(2) In those sections “Northern Ireland charity” means an institution—
(a) which is a charity under the law of Northern Ireland, and
(b) 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 institution which is applicable and applied to charitable purposes only.”
(5) In section 100(4) of the 1993 Act (provisions extending to Northern Ireland) for “extends” substitute “and sections 24 to 25A extend”.
For section 29 of the 1993 Act substitute—
(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 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 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 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.
(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—
(a) charities generally,
(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.”
After section 29 of the 1993 Act (as substituted by section 24 of this Act) insert—
(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.
(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.”
Charities Act 2006