Charities (Protection and Social Investment) Act 2016
Charities (Protection and Social Investment) Act 2016
2016 CHAPTER 4
An Act to amend the Charities Act 1992 and the Charities Act 2011.
[16th March 2016]
Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—
1 Official warnings by the Commission
Before section 76 of the Charities Act 2011, after the heading “Powers of Commission to act for protection of charities etc” insert—
“75A Official warnings by the Commission
(a) to a charity trustee or trustee for a charity who it considers has committed a breach of trust or duty or other misconduct or mismanagement in that capacity, or
(b) to a charity in connection with which it considers a breach of trust or duty or other misconduct or mismanagement has been committed.
(a) may publish a warning it has issued;
(b) may issue or publish a warning in any way it considers appropriate.
(3) Before issuing a warning under this section, the Commission must give notice of its intention to do so to the charity, and each charity trustee or trustee for the charity, except any who cannot be found or who has no known address in the United Kingdom.
(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.
(a) the power under subsection (1) to give the warning, and the grounds for the warning;
(b) any action that the Commission considers should be taken, or that the Commission is considering taking, to rectify the misconduct or mismanagement referred to in subsection (1);
(c) whether and, if so, how the Commission proposes to publish the warning;
(d) a period within which representations may be made to the Commission about the content of the proposed warning.
(a) it must take into account any representations made to it within the p eriod specified in the notice, and
(b) it may (without further notice) issue the warning either without modifications or with such modifications as it thinks desirable.
(7) The Commission may vary or withdraw a warning under this section.
(8) Subsection (2) applies to the variation or withdrawal of a warning as it applies to a warning.
(a) in subsection (5)(a) references to the warning are to be read as references to the warning as varied, and
(b) the matter to be specified under subsection (5)(b) is any change as a result of the variation in the action previously proposed by the Commission.”
2 Investigations and power to suspend
(1) Section 76 of the Charities Act 2011 (suspension of trustees etc and appointment of interim managers) is amended as follows.
(2) In subsection (1)(a), for “any” substitute “a failure to comply with an order or direction of the Commission, a failure to remedy any breach specified in a warning under section 75A, or any other”.
(3) In subsection (4), at the end insert “, subject to any extension under subsection (7)”.
(4) At the end add—
“(7) At any time before the expiry of an order under paragraph (a) of subsection (3) the Commission may extend or further extend the suspension by an order under that paragraph, provided that—
(a) the order does not extend the suspension for a period of more than 12 months, and
(b) the total period of suspension is not more than 2 years.”
3 Range of conduct to be considered when exercising powers
After section 76 of the Charities Act 2011 insert—
“76A Exercise of powers where section 76(1)(a) applies
(1) This section applies to any power under this Part which is exercisable in cases where the Commission is satisfied as mentioned in section 76(1)(a) in relation to a charity (misconduct or mismanagement), with or without any other condition.
(a) that a particular person has been responsible for the misconduct or mismanagement,
(b) that a particular person knew of the misconduct or mismanagement and failed to take any reasonable step to oppose it, or
(c) that a particular person’s conduct contributed to it or facilitated it,
the Commission may take into account the matters mentioned in subsection (3) in deciding whether or how to exercise the power.
(a) the conduct of that person in relation to any other charity;
(b) any other conduct of that person that appears to the Commission to be damaging or likely to be damaging to public trust and confidence in charities generally or particular charities or classes of charity.”
4 Power to remove trustees etc following an inquiry
(1) The Charities Act 2011 is amended as follows.
(2) For section 79 (Commission’s power to remove trustees etc following an inquiry) substitute—
“79 Removal of trustee or officer etc for protective etc purposes
(1) Subsection (2) applies where, at any time after it has instituted an inquiry under section 46 with respect to any charity, the Commission is satisfied either as mentioned in section 76(1)(a) (misconduct or mismanagement) or as mentioned in section 76(1)(b) (need to protect property etc).
(2) The Commission may of its own motion by order establish a scheme for the administration of the charity.
(3) Subsection (4) applies where, at any time after it has instituted an inquiry under section 46 with respect to any charity, the Commission is satisfied both as mentioned in section 76(1)(a) (misconduct or mismanagement) and as mentioned in section 76(1)(b) (need to protect property etc).
(4) Whether or not it acts under subsection (2), the Commission may of its own motion by order remove any trustee, charity trustee, officer, agent or employee of the charity—
(a) who has been responsible for the misconduct or mismanagement,
(b) who knew of the misconduct or mismanagement and failed to take any reasonable step to oppose it, or
(c) whose conduct contributed to it or facilitated it.
(5) Where the Commission has given notice under section 82 of its intention to make an order under subsection (4) removing a person from an office or employment, the Commission may proceed to make the order even though the person has ceased to hold the office or employment.
(6) Where an order is made relying on subsection (5)—
(a) section 81(1) (power to make supplementary provision) and Case D in section 178(1) (disqualification) apply as if the person was removed by the order, but
(b) the order does not affect the time when the person ceased to hold the office or employment.”
(3) In section 83(3) (power to suspend or remove trustees etc from membership of charity)—
(a) for “79(2)” substitute “79(4)”;
(b) for “an officer,” substitute “a trustee, charity trustee, officer,”.
(4) In section 87(1) (supervision by Commission of certain Scottish charities), for “79(2)(b)” substitute “79(1) and (2)”.
(5) In section 178(1) (automatic disqualification of charity trustees), in Case D for “79(2)(a)” substitute “79(4)”.
(6) In Schedule 6 (appeals to tribunals), in the entry relating to an order made by the Commission under section 79(2) in relation to a charity—
(a) in column 1, after “79(2)” insert “or (4)”;
(b) in column 2, for “79(2)(a)” substitute “79(4)”.
5 Power to remove disqualified trustee
(1) The Charities Act 2011 is amended as follows.
(2) After section 79 insert—
“79A Removal of disqualified trustee
The Commission may remove a charity trustee or trustee for a charity by order made of its own motion if the person is disqualified from being a charity trustee or trustee for a charity (generally or in re lation to the charity concerned)—
(a) by virtue of section 178, or
(b) by an order under section 181A.”
(3) In section 82(1) (removal of trustees etc: notice), after “79” insert “, 79A”.
(4) In section 89(1) (orders relating to trustees etc: exceptions to publicity requirement), after paragraph (b) insert, “or
(c) an order under section 79A (removal of disqualified trustee),”.
(5) In section 89(5) (notice inviting representations on order to remove), after “an order under this Act” insert “, other than an order under section 79A,”.
6 Power to direct specified action not to be taken
(1) The Charities Act 2011 is amended as follows.
(2) After section 84 insert—
“84A Power to direct specified action not to be taken
(1) This section applies where, at any time after the Commission has instituted an inquiry under section 46 with respect to any charity, the Commission considers that any action, if taken or continued by a person listed in section 84(2), would constitute misconduct or mismanagement in the administration of the charity.
(2) The Commission may make an order specifying the action and directing the person not to take it or continue it.
(3) While an order under this section is in force, the Commission must review it at intervals of not more than 6 months.”
(3) In section 20 (incidental powers), in subsection (3) after “84” insert “, 84A”.
(4) In section 86(2) (copy of certain orders, and reasons, to be sent to charity) an d section 336(2)(a) (enforcement of orders of Commission) insert in the appropriate place—
“section 84A (power to direct specified action not to be taken),”.
(5) In Schedule 6 (appeals and applications to Tribunal), insert in the appropriate place—
“Order made by the Commission under section 84A(2) which directs a... |
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