Chamber and committees

I am delighted to have the opportunity to speak to you about the Charities (Regulation and Administration) (Scotland) Bill. The committee will be aware, from its evidence sessions so far, that there is significant support for the bill and for the modernisation of Scottish charity law.

The bill is built around proposals that have been put forward by the Office of the Scottish Charity Regulator—OSCR—that are based on its operational experience since the Charities and Trustee Investment (Scotland) Act 2005 came into force. In addition to the OSCR proposals, and following engagement with OSCR and the Law Society of Scotland, the record of charity mergers at section 12 and a list of minor or technical amendments to the 2005 act were added to the bill. The bill was delayed due to the pandemic, so I am pleased that we are now able to progress it.

The bill covers a range of different provisions that are designed to enhance the existing framework. Each of the provisions falls under one of three primary aims, which I will outline briefly.

The first aim is to increase transparency and accountability in charities by improving public access to information about a charity’s operations. The bill will require OSCR to publish the accounts for all charities and to include the names of charity trustees on the Scottish charity register. OSCR will be able to maintain a schedule of charity trustees’ details for its own internal use and provide a publicly searchable record of trustees who have been removed from office by the courts.

The second aim is to provide stronger powers for OSCR, including the power to issue positive directions to help charities to address regulatory issues. The bill will give OSCR a new power to issue positive directions to charities, in addition to its existing powers to issue preventative directions. It will also allow OSCR to conduct inquiries into former charities and their trustees.

OSCR’s powers and duties in connection with the register will be enhanced by enabling it to remove a charity from the register when that charity fails to provide accounts and is unresponsive to attempts by OSCR to make contact. In addition, there is a new provision that will require OSCR to refuse to enter an applicant charity on the register when it considers that it would not be appropriate to regulate the applicant because the charity has no, or only a negligible, connection to Scotland.

OSCR will be empowered to appoint interim trustees to a charity in certain circumstances—for example, when the charity has no trustees or the existing trustees cannot be found. Further, the bill will make some adjustments to OSCR’s processes around gathering information in connection with inquiries to make those processes more streamlined and efficient.

The third aim of the bill is to bring Scottish charity law up to date with some key aspects of charity regulation in England, Wales and Northern Ireland, thereby enhancing public trust in charities and further protecting charitable assets. That will be achieved through updates to the criteria that apply to the disqualification of charity trustees and the extension of disqualification to individuals who are employed in charities who exercise senior management functions. The bill will enhance protection for charitable assets through the creation of a record of charity mergers and a new provision for redirecting legacies from a charity that has merged and ceased to exist to the charity with which it has merged.

The bill will make practical improvements and updates to existing charity regulation and the role of OSCR. We consulted on those aspects pre-pandemic, and we are now taking them forward.

I believe that there is also a need for a broader review of the future of charity regulation, which is why I have committed to begin such a review following the passage of the bill. We will ensure that we engage with the charity sector on the scope of that review.

I am happy to take questions, convener.

As I understand it, OSCR already includes the Gaelic charity name on the Scottish charity register when the charity has requested it. The question is whether the register could include a Gaelic version of every charity name, which would be a matter for OSCR to consider as part of its duties and resources as an independent public body. The member might want to raise the question directly with the organisation to see whether it would be willing to consider that.

OSCR is very much aware of the needs of smaller charities in particular, and it already recognises those needs in the way in which it conducts its business. What OSCR requires of a huge charitable organisation is quite different in comparison with what it requires from a small local charity.

OSCR has experience of working with organisations of vastly differing scopes and sizes. With regard to the changes in the bill, OSCR recognises that, although there is nothing onerous in the requirements, smaller charities may need additional support, or may simply need to be reassured about what will be required of them.

I take your point. As you said, the bill does not include any dispute mechanism in relation to the appointment of interim trustees, and you have highlighted the unlikely—but potential—scenario in which someone could dispute the process. I think that the new power, by its nature, will be used only in circumstances where, in effect, no one is running the charity. If there were concerns in relation to appointments, I would expect OSCR to engage on a case-by-case basis with those who are raising concerns. If an individual remained and there were no concerns about them continuing as a trustee, I would expect OSCR to work with that remaining trustee to help to recruit on an urgent basis some interim trustees that they could work with. If you are thinking of an extreme scenario, in which the person said, “I am not going to work with anyone,” you are into territory where the person is obstructing the work of the charity. In that unlikely scenario, it would be for OSCR to determine the most appropriate route to take for the good of the charity.

We consider that OSCR is best placed to make decisions on what constitutes a connection to Scotland in individual cases. It would be guided by the facts and circumstances of the case, its extensive experience as a regulator and the guidance that it will produce on that part of the bill, which it will consult on.

The provision is unlikely to impact on the vast majority of charities or applicants to become a charity. OSCR’s data indicates that two charities out of 25,000 do not appear to have a connection to Scotland. Its decisions on whether an applicant charity or an existing charity has a sufficient connection to Scotland will be subject to the review and appeal mechanisms that are already in place under the 2005 act.

It is not a huge issue, and leaving it to OSCR to look at each individual case is a sensible approach.

We have touched on some of that. The bill does not introduce significant additional costs to charities, and I do not think that what charities are being asked to do is burdensome. A lot of that information is already held, so I do not think that there will be huge additional costs. I do not think that that will be the case for councils that administer charities either, or for the sector as a whole.

Previous evidence sessions have noted that there would be a small resource requirement to comply with the new provisions. We approached a small representative sample of charities to ascertain estimated costs and savings as a result of the bill’s provisions, which will directly impact all charities. Overall, the charities that fed back did not anticipate incurring anything other than minor costs and were supportive of the proposals as set out. The benefit that the bill will bring to the sector as a whole will far outweigh the very minor costs to charities.

It is important to progress the bill, so I envisage the substantive discussions around the scope of the review happening after stage 3, but there is probably some groundwork on the mechanics of how we would take forward those discussions that could already be taking place. However, I do not want to redirect these guys beside me, who are working on the bill, to carry out that work while they are doing so, so we need to manage resources appropriately. The main scoping with the sector will have to take place after stage 3.

I do not want to be too restrictive about how long it will take after that, because it depends on the scope. If the scope is extensive, we will need to take as long it takes to get it right. Once stage 3 is complete, I am prepared to set out more detail on that process. We will then have the capacity to look at that in more detail.

We touched earlier on the point about designated religious charities. It is intended that DRCs will be exempt from positive directions, in line with the precedent that was set by the 2005 act.

The bill seeks to update and improve the existing law rather than to change the original policy intent of the 2005 act, which recognises that many religious bodies operate effective self-regulatory mechanisms through internal supervisory and disciplinary functions.

There is a balance to be struck in relation to not wanting to overregulate such charities, but I recognise the point that Miles Briggs makes. There are varying views on the subject, and some in the sector would like the exemption to be reviewed. It probably could be considered as part of the wider review—we could come back to that. However, we felt that it was not appropriate to review the exemption at this time.

That is an important point. In section 11, on the removal of charities, the bill provides OSCR with a bespoke route to remove a charity from the register when it has failed to provide accounts as required, the deadline for submission has passed, and the charity—this is important in relation to your previous point—has not responded to any communications from OSCR.

The removal process is not automatic. The power is discretionary for OSCR and it will take into account all the information that it has. The removal process starts with giving the charity notice of the intention to remove it, after which it has three months to act. If it makes contact with OSCR in any way during those three months, the process stops and OSCR can use its other powers to ensure that the charity complies with its duty to provide a statement of accounts.

There are various points at which a charity can avoid its removal from the register, and engagement with OSCR is obviously key. If the delay has been caused by either an oversight or problems within the charity, OSCR will want to work with the charity. It is not in anybody’s interests for a charity that is doing good work to end up being removed from the register because of practical issues or problems that have emerged within the organisation.

A consultation with the Information Commissioner’s Office has been carried out as required by the general data protection regulations. As part of the consultation, the Information Commissioner’s Office raised some points that were addressed during the policy development stage. Any amendments made by this bill and involving the processing of personal data all operate within the framework of and, importantly, are consistent with general data protection regulation and the Data Protection Act 2018.

There is a strong argument for members of the public being able easily to access charities’ financial information and information about those who are doing the important work of running charities, given that that involves having responsibility for charitable property and for donations from the public. It is also important that those provisions are accompanied by appropriate safeguards. The dispensation mechanisms that we spoke about earlier allow for certain information to be excluded from the register, the statement of accounts and the record of removed trustees, where inclusion of such information would be

“likely to jeopardise the safety or security of any person”

We covered that earlier.

Rather than concerns having been raised, there are points to consider. As I have just explained, those have been taken on board.