The Charities (Regulation and Administration) (Scotland) Bill

In this month’s blog, Jenna Fair looks at the long-awaited Charities (Regulation and Administration) (Scotland) Bill, which was published in November:

The process of charity law reform in Scotland started back in 2018 so the publication of the Bill is a positive step.  Some of the changes we were expecting have not been included but others have.  Here we look at some of the provisions which will affect the most charities or have a more significant impact.

Going forward OSCR will have to publish the names of charity Trustees on the public charity register.  There will be a dispensation not to name Trustees for safety or security reasons and charities will have to notify OSCR of any changes in Trustees within three months.  This information was already held by Companies House for charities constituted as companies and so it brings other charities such as Trusts and SCIO’s in line.

OSCR will also hold such other details of charity Trustees as they decide are necessary on an internal data base.

Bringing Scotland in line with England & Wales, the Bill extends the range of criminal offences which will result in automatic disqualification from holding office as a Trustee.  It also extends the provisions in relation to disqualification to senior management as well as Trustees.

There will be a public register of persons removed from office (by order of the Court of Session).

OSCR’s powers will be enhanced under the provisions of the Bill;

The concept of ‘Acting Trustee’ is replaced by ‘Interim Trustee’.  An interim Trustees can be appointed by OSCR either following a request by a majority of the charity’s existing Trustees or by OSCR themselves if they decide it is necessary.

OSCR will be able to investigate charities and Trustees who are no longer on the register. They will have powers to issue positive directions (they can currently only issue negative directions) and they will have new powers in relation to Scottish Charities with no / negligible connection to Scotland.

One of the most useful changes set out in the Bill is in relation to the creation of a register of charity mergers.

When charities combine one or more charities may legally cease to exist and this can cause serious issues when that charity is left a legacy in the future.  Often the structure of charity combinations is driven by the need to protect future income from wills.

Under the new provisions charities will notify OSCR once a merger / combination has been completed and OSCR will hold the details on a public register.  Bequests to charities that no longer exist will pass to the new entity ‘unless it is clear that the testator intended otherwise’.

The consultation on the Bill is open until 3rd February – there’s a short version and a longer version, so make sure you have your say on the planned changes.

This blog is intended as a general overview and discussion of the subjects dealt with. It is not intended to be, and should not be used as a substitute for taking professional advice in any specific situation. Wylie & Bisset LLP (and its subsidiary Wylie & Bisset (Audit) Limited) will accept no responsibility for any actions taken or not taken on the basis of this blog. If you would like further advice or would like to discuss any of the issues raised in the blog then please get in touch with your regular Wylie & Bisset contact or use the contact form on our website.

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