Charities and Trustee Investment (Scotland) Bill
The next item of business is a debate on motion S2M-2773, in the name of Malcolm Chisholm, that the Charities and Trustee Investment (Scotland) Bill be passed.
The Charities and Trustee Investment (Scotland) Bill aims to provide a regulatory framework—with an independent regulator—that is clear and proportionate, that allows charities in Scotland to flourish and which gives the public confidence in the charity brand following previous instances of misconduct that have served to undermine public confidence in donating. The bill, which the charity sector has called for for a long time and to which we gave a commitment in our partnership agreement, is good for the charity sector and for Scotland. We all want an environment in which charitable activity can flourish.
The bill is the result of extensive consultation, which the Communities Committee recognised and commended. I would like to record in the Official Report the Executive's thanks to all those who took part in the consultation and to those who have contributed to the bill's development. I also thank the Communities Committee and its staff for their hard work and their careful scrutiny of the bill. Last, but by no means least, I thank the Executive bill team and Johann Lamont, who did a lot of work at stage 2, as well as before and after it. The bill is now much stronger as a direct result of so many people having taken the time and opportunity to engage constructively in its development. I look forward to that engagement continuing as we move towards implementation of the act and development of the secondary legislation.
I am sorry that I did not have the opportunity earlier to make the point that I am about to make. As the minister knows, the Subordinate Legislation Committee raised a number of issues, most of which have been addressed by the Executive. However, the committee is still concerned about section 82(5) of the bill which, as the minister knows, is on fundraising regulations and the power to create offences. The committee's view is that the power to create criminal offences should be in the bill and not left to regulations, and that the bill, as drafted, does not constitute good legislative practice. I would be grateful if the minister would spell out why it was decided not to amend the bill in that regard.
In our response to the Subordinate Legislation Committee's stage 1 report, we confirmed that the power in section 82 would not specifically create a criminal offence. The regulations may provide for an offence, but that can only be provided for in accordance with section 82(5) through the sanction of a fine not exceeding level 5 on the standard scale. That was considered to be appropriate because we might need flexibility to deal with evolving fundraising methods in the future. It will allow the regulations to make different provision for different circumstances. Any regulations will be consulted on and will come before the Subordinate Legislation Committee. Once again, we have seen the strength of the Scottish Parliament's committee system, in that the Subordinate Legislation Committee was able to debate and grapple with important matters that were central to the objectives of the bill.
There was robust debate on the public benefit test, but there was little disagreement with the bill's central keystone, which is that every charity should be required to show that it provides benefit and that decisions on conferring charitable status should be taken case by case by an independent regulator.
During the parliamentary process, the Executive listened to the concerns of the Communities Committee and others about the list of charitable purposes. I believe that we now have the right list; it encapsulates the key purposes that the public think should be charitable purposes and is flexible enough to allow the test to evolve and grow.
The bill and the charity test provide a robust regulatory regime that will give the public confidence in the charity brand.
Will the minister give way?
I will do so in a moment.
The bill lays out clear rules about what constitutes a charity and gives the Office of the Scottish Charity Regulator the proper powers to deal with wrongdoing. The fundraising provisions provide further reassurance that people who donate to charity can have confidence in how their donations are used. They make provision for greater regulation and increased transparency in how the money from fundraising is raised.
I endorse strongly much of what the minister has said, but concerns still remain among charities that have complex governance structures. Will the minister reassure such charities on how those structures are defined in the bill?
Let me first say that, because I was looking round at the time, the last word that I said before I took the intervention should have been "used" rather than "raised".
On Patrick Harvie's question, we believe that section 103 will provide a flexible definition that describes charity trustees broadly rather than narrowly, and in a way that is not prejudicial to charities that have complex governance structures. We believe that that addresses the difficulties that have been suggested by charities, such as the National Trust for Scotland, which have constitutions that set out unusual governance arrangements. It is right that the constitution of a charity should determine who is in general control and management of the administration of that charity.
I had better move to my conclusion so that other members can speak in this short debate. Much work remains to be done; we need to appoint the members of OSCR, set up the appeals panel and develop the various regulations that will provide the practical detail. I look forward to continuing positive and practical discussions on those issues throughout the process.
I am delighted to commend the bill to Parliament and ask members to give it their full support.
I move,
That the Parliament agrees that the Charities and Trustee Investment (Scotland) Bill be passed.
I call Christine Grahame and I ask her to be as quick as possible.
I feel as if I should stand up and then sit down if I am to be as quick as possible.
The vast majority of volunteers in the charitable sector are excellent, dedicated and honest people. They work in a vast and varied sector, which ranges from wee shops that sell second-hand toys and furniture in order to help ill-treated animals—there is one such shop opposite my office in Galashiels—to mega-charities such as Oxfam. However, when a few bad apples contaminated the barrel, the repercussions on donations and on people's attitude towards the sector were ill-deserved. The bill will remedy that situation by providing a framework and an independent office—OSCR—whose role, which should not be underestimated, will be to regulate and assist the charitable sector.
I believe that the Communities Committee strengthened the bill. We had the usual healthy tensions that should exist between a committee and a minister, such as the skirmish over a humble little amendment of mine, which I never expected to win. The distraction concerning the independent schools sector skewed things, because the bill is vast and comprehensive and deals with much more that independent schools, including many things that are much needed in Scotland. The SNP will support the bill.
I, too, thank the clerks and—in this instance—the bill team. I also thank my committee colleagues who, except on one issue, all left their political hats at the door so that they could focus on passing decent charities legislation. I must also express my admiration—I am being very sycophantic today—for the way in which the ministers responded in a measured and considered manner to all but one of the amendments.
At stage 1, the Scottish Conservatives welcomed the bill's general principles of reviewing and updating charity law. We commend the work of the voluntary and charitable sector, which provides services in a way that the state could not. We wish to encourage people to give to charities in the knowledge that the moneys that are received will be used for the purposes for which they were intended. We also welcome the full role of OSCR in regulating and investigating charities.
However, I must express one concern, which is relevant to most bills that we pass in Parliament. My concern is that so much of the spirit of understanding and of the practicalities of implementation and interpretation are written in guidance that is published at a later date, which may be months or more after the bill is passed. We often sign up to amendments and to legislation in good faith and are blissfully unaware of the regulations that will follow. When awkward questions were asked about the bill, the replies were often that the issue would be covered in guidance or that it would be up to OSCR to decide.
Unfortunately, the inclusion of the amendment on OSCR's powers to determine public benefit in relation to a charge or a fee is the one aspect that we find, regrettably, to be unacceptable. Therefore, with regret, the Conservatives cannot fully support the bill because of that amendment. We cannot vote against the bill because of the support that I have given it throughout stages 1 and 2 and pre-legislative scrutiny, and because of the support that we have given to the general principles and the main content. We will therefore, with regret, abstain in the vote on the bill.
As other members have said, there is a long history behind the bill—I took part in a committee that discussed the issue more than 30 years ago. We must pay tribute to Jean McFadden and her committee and to Jackie Baillie who, as a minister in the early days of Parliament, got the vehicle going.
This is a great day for Scottish charities as we pass this important bill. Consideration of the bill at stages 1 and 2 showed us working effectively; there was good consultation of all sorts of people in different parts of the country and many witnesses came before the committee.
Amendments were discussed thoroughly at stage 2. There were some good moments, such as when it was agreed that, in respect of amendments on payment of trustees, no members would press their amendments because we were coming from a variety of directions. The compromise that the minister has put forward today is very suitable.
The one sour note that I will sound is that we must reconsider timetables for bills' later stages. First, the discussion and negotiations about amendments prior to the stage 3 debate must be done better. It is not satisfactory to receive several pages of amendments on the closing date because that means that we cannot discuss them and negotiate. Secondly, some parts of the debate this afternoon have been ridiculously curtailed; more members should have been enabled to speak. We must consider that matter.
However, that does not detract from the importance of the bill and the great consensus behind it. On most issues, we have achieved a reasonable set of rules to put forward to OSCR. The members of OSCR must be elected and the organisation must take off thoroughly—it has started quite well. It is up to OSCR to interpret this reasonable bill in a reasonable manner so that an engine can be put into Scottish charities, which are such an important part of our life.
It is a great pleasure to speak in the debate. My interest in charities legislation and the need for it predates my election to Parliament in 1999. I know that many other members have also striven over the years to keep the subject on the agenda.
The bill is essential in order that we can restore public confidence in charities and the people who operate them. The generous people of Scotland have the right to expect that their hard-earned money is spent wisely and not misused, and that the people who operate charities are fit to carry out such duties. The bill will achieve all those things. It is long overdue, very welcome and will go a long way towards restoring public confidence in Scottish charities.
This Scottish Parliament has done Scotland proud with the bill. I plead with the Conservatives to set aside their narrow interests, to embrace the legislation as a good thing and to allow the Scottish Parliament to give unanimous support for charities in Scotland.
The bill will help to establish a framework that will provide greater clarity for Scottish charities and greater reassurance for members of the public who donate to them. The bill has been shaped by the views and experiences of the charitable and voluntary sector in Scotland. Even the independent schools, which may not be happy with the final shape of the bill, must concede that their views were listened to and taken into account during scrutiny.
The establishment of OSCR as a statutory body corporate with responsibility for delivering the key elements of the bill is a sensible way forward. Using the two-part test, OSCR will have sufficient flexibility to take a reasonable approach to determination of charitable status, which is to be welcomed. That is why today Mary Scanlon was so wrong to argue that there should be an exemption for independent schools. If she truly cared about the charitable sector in Scotland, she would have argued that it needs to be protected. Why did she not argue that the Red Cross, which provides health care services in Scotland, and the YMCA, which delivers education, should get the same exemptions as the independent schools and hospitals that she was so keen to protect?
As the convener of the Communities Committee, I would like to thank a number of people who have been invaluable in the process of scrutinising the bill. I start by thanking my colleagues on the committee, who worked through difficult issues tirelessly while also working on stage 1 of the Housing (Scotland) Bill. I thank the committee clerks for their constant support and advice during stages 1 and 2. I thank all those who gave oral and written evidence to the committee and thereby helped to broaden members' knowledge. I thank the staff of the Scottish Parliament information centre for the informative briefings that they provided to committee members.
Last and by no means least, I thank the Scottish Council for Voluntary Organisations for its determination to ensure that the bill came before Parliament and, more recently, for its assistance in facilitating pre-legislative visits. I am sure that I speak for all members of the Communities Committee when I say that those visits and the evidence that we heard in their course proved to be invaluable during our later deliberations.
I will welcome the passing of the Charities and Trustee Investment (Scotland) Bill today. It is yet another building block in Parliament's efforts to nurture and strengthen voluntary and charitable activity in Scotland. We all know the benefits of that activity, both to individuals and to the wider community. I am pleased to support the bill.
I, too, welcome the principles of the bill. I am disappointed about the provisions relating to misconduct, because I think that we are storing up problems for the future. I cannot understand why we cannot continue to refer to "mismanagement" and "gross mismanagement", rather than to "misconduct" as a collective term. However, that is how the process works—we made our arguments and we were beaten on the issue.
The bigger picture—the bill as a whole—is much more important, which is why I am disappointed that Scotland's charities bill will not be agreed to unanimously. It is pretty shameful that poor Mary Scanlon has been left by herself to face the embarrassment of what the Conservative party is doing today. I guess that's life.
I give a broad welcome to the bill and hope—I am sure that it will—that it will work for the charitable sector in Scotland. Monitoring by OSCR, the Executive and Parliament will be necessary and will ensure that the bill works for a long time, to the benefit of charities in Scotland in the future.
I thank all those who have been involved in getting us to where we are today. In particular, I thank the convener of the Communities Committee, committee members and the clerks for their hard work and the rigour with which they developed proposals relating to the bill. I also thank all those who managed to cope with my moving from poacher to gamekeeper during the bill process. It has been a long journey.
Duncan McNeil, in one of his grumpy modes, said that he did not see why we should thank everyone at the end of the day, because people were only doing their jobs. I was tempted to say that when we express thanks shortly before passing a bill it can be a bit like the Oscars. However, it is relevant for me to point out that, despite the noise and thunder at stage 1 from the SSP regarding one issue in the bill, the SSP was the only party that lodged no amendments at either stage 2 or stage 3. We had the old politics of debate by resolution, when the challenge that the Parliament presents to all of us is the hard work of committees, of listening to interested groups and bodies, of working with one another within the committee structure and the chamber, and of recognising that there are diverse, wide-ranging and challenging interests across Scotland that deserve to be heard and to influence our legislation. I welcome the broad, deep and serious work that has been done by the vast majority of those who serve in the chamber. I am delighted to be part of the process today.
There was a lot of traffic and there were a lot of noises off in connection with the purpose of the bill. However, we know that legislation was important to the charitable sector; the sector itself asked for it. The bill is important for those who are active in the sector, for those who benefit from the sector, for those who wish to give of their time and money to the sector, and for the fundraising base of the organisations in the sector.
A flourishing charitable sector is important for the new way in which we do government, and I am genuinely disappointed that the Tories will not be able to support the bill as it stands. OSCR will be accountable to this Parliament. OSCR will be obliged to consult on its guidance and this Parliament has shown itself in the past to be very proactive—through its committee structure in particular—in pursuing issues with which it is uncomfortable. I therefore regret that the Tories will not support the bill.
Congratulations have been offered to many people, including Jean McFadden, on moving the debate forward. However, I hope that people will not take it amiss if I add congratulations to people such as Jackie Baillie—people who drove on the debate and encouraged others to take up the issue. In particular, I congratulate Margaret Curran who, when she was Minister for Communities, acted swiftly to deal with scandals over the financial mismanagement of charities. Those scandals were generating huge anxiety, which was beginning to erode people's faith. At one point, we were perilously close to seeing real damage being inflicted on the sector. Margaret Curran, knowing how hard a challenge it would be for us all, moved quickly to commit the Executive to a bill. She is to be congratulated on doing that.
Although we knew that legislation was necessary, we also knew that it would not be easy, because of the nature of the sector. The very things that we love about the charitable sector are the very things that make it difficult to legislate on. It is eccentric and it is odd. I congratulate the bill team on its capacity to respond to the very strange, different and unexpected things that came up as the bill went through its stages. The bill team was able to understand the eccentricities and the strengths of the sector, and the team, together with many in this chamber, was able to respond.
This is a good day for the charitable sector and a good day for the Parliament. We now have an objective and independent regulatory system that is in a position not to presume for or against anyone. The only thing that organisations have to do is to meet the public benefit and charity tests. The vast majority of organisations that are currently charities will be able to meet those tests. Regulation and management of the sector will be not for us, but for OSCR, which is an independent body. That will be a great strength, both for the sector and for Scotland.
I am very happy to add my thanks to all those who have been involved, and to encourage support for the bill at decision time.
Decision time is fixed for 17:30, so I suspend the meeting until then.
Meeting suspended.
On resuming—