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Draft Charities and Trustee Investment (Scotland) Bill Consultation
CONSULTATION REPORT
Executive Summary
This Consultation Report consists of two main parts. The first part provides a summary and analysis of the written responses received by the Scottish Executive to the public consultation on the Draft Charities and Trustee Investment (Scotland) Bill. The second part contains a summary of the actions and changes made to the Bill by the Scottish Executive as a result of the consultation process.
The Scottish Executive received 262 written responses to the consultation. 223 of these responses were on behalf of organisations and 39 were from individuals.
The majority of responses welcomed the draft Bill and the overall approach it adopted, recognising the need for effective statutory regulation of charities in Scotland in order to support the sector and maintain public confidence in it. Respondents expressed concern that compliance with the draft Bill would place a burden on charities and welcomed proportionate application of the legislation.
Respondents welcomed the creation of a 2-stage charity test and the majority of those commenting on this felt that public benefit criteria should be included in the Bill. Respondents also welcomed the establishment of OSCR as a statutory regulator, its form as a Non-Ministerial Department, its functions set out in the draft Bill and commented on the composition of the OSCR board. There was support for the creation of a publicly available register of charities in Scotland, but concern was expressed that the publication of certain information could have security issues to charities working in sensitive areas.
A number of responses expressed confusion about which bodies would be required to register with OSCR and concern that this could lead to a disproportionate burden on bodies registered and operating in more than one jurisdiction and subject to more than one charity regulator, as well as those covered by other regulators such as Communities Scotland.
There was an overwhelming view in the responses against the term 'charity steward' to describe those persons in control of a charity, which the term 'charity trustee' being favoured by most. There was also overall support for the steward duties set out in the draft Bill, with a number of respondents commenting that this clarification would help charity stewards to understand more clearly their responsibilities and liabilities, and that charity stewards should be independent. A number of responses expressed concern about the duty in the draft Bill placing responsibilities on professionals.
Respondents also offered support for the powers to deal with wrongdoing in charities set out in the draft Bill. A number of responses raised concerns about the level of personal liability that the draft Bill place on charity stewards and were concerned that they could discourage people from volunteering to be charity stewards. The majority of responses commenting on the appeals provisions offered support for the process in general, seeing them as an improvement on the existing process and welcoming the clear, free appeals route and the creation of the Appeals Panel. Some responses commented that the time limits were very short.
There was widespread support for the provisions contained in the draft Bill and the consultation paper on regulating charity fundraising, with respondents recognising the need for increased regulation of fundraising. A number of respondents welcomed the provisions in the draft Bill for the regulation professional fundraisers and commercial participators, the powers to prevent unauthorised fundraising and the proposal to introduce limited statutory regulation of fundraising which would operate alongside a self regulation scheme. Responses welcomed the continuation of a local authority led licensing system for public benevolent collections (PBCs), welcomed the inclusion of collections of promises of money as well as cash, and supported the redefinition of public place. A few responses suggested that collections not covered by the PBC provisions, including goods collections, should be subject to a requirement to notify local authorities in advance of intention to collect.
The majority of responses commenting on the reorganisation provisions contained in the draft Bill welcomed the provisions, as did those commenting on the dormant charity accounts provisions. Opinions on the designated religious charities provisions were mixed. Some welcomed the provisions while others felt that religious charities should be subject to the same regulation and reporting requirements as other charities. The majority of respondents who commented on the accounting provisions welcomed the proposals. Responses also offered support for the widening of trustee investment powers and the provisions for Scottish Charitable Incorporated Organisations.
Part 2 of the report highlights the main changes to the Bill as a result of the consultation and the reasoning behind them. These include the inclusion of criteria defining public benefit, a duty on OSCR to perform its duties in a manner that encourages equal opportunities, provision for OSCR to exclude from the register a charity's or charity trustee's address if it could jeopardise security and provision for charities registered elsewhere and with only a minimal interest in Scotland not to register with OSCR. Other changes include the delegation of OSCR's functions to Scottish Ministers in relation to the regulation of Registered Social Landlords, changing references to charity stewards to charity trustees, the expansion of the provisions on Scottish Charitable Incorporated Organisations and the inclusion transitional provisions and of reserve provisions on the collection of goods.
The Scottish Executive
December 2004
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