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Introductory Statement
In general, SPPA warmly welcomes the draft Charities Bill that will
give the voluntary sector an opportunity to help modernise the legal
framework that will govern charities in the future and thereby help
restore the public’s faith in charities operating in Scotland.
SPPA’s main points are that:
1. SPPA welcomes the commitment to ‘proportionality’
within the proposed legislation. It is important to recognise that over
two-thirds of charities have an income of less than £25,000, many
of whom have an income of less than £12,500, and that there has
only been three high-profile scandals affecting charities in the past
thirteen years. SPPA therefore believes that any new legislation governing
smaller charities (such as voluntary sector pre-school groups) should
be proportionate to risk. We believe that it would be a retrograde step
should many of these small charities opt out of registering as a charity
due to any onerous burdens created by new legislation.
2. SPPA welcomes the fact that ‘charity’
will be defined in Scots Law for the first time. We do hope however
that there will be close alignment in the definition of what constitutes
a charitable organisation between Scotland and the rest of the UK. This
would be particularly important for UK charities operating in Scotland.
3. SPPA would support the Bill’s
commitment to support the thousands of volunteer members of charity
boards to ensure that they are well prepared to carry out their functions
as ‘trustees’ effectively and properly.
Response to specific questions
Should the interpretation of ‘public benefit’ be left to
the regulator or provide broad criteria in the Bill?
We would recommend that broad criteria be set out in the legislation.
We would however wish to see greater clarity in the interpretation of
the third bullet point of the proposed criteria and in particular ‘who
would constitute a sufficient number of members of the public within
a community’. SPPA believes that it is vitally important to define
public benefit more rigorously so that those members of the general
public in the majority can benefit from charitable activity and not
for the direct benefit of the most privileged minority in our society.
What will be the appropriateness
of OSCR’s form, appointments and functions?
SPPA would propose that OSCR follows the same principles being proposed
for the governance of charities with a strong sense of independence
from government involvement. We are satisfied with the proposal that
OSCR should be established as a Non-Ministerial Department governed
by a board independent of Ministers but with accountability to the Scottish
Parliament. We concur with the charity sector consensus view that any
framework of controls need not involve ministerial engagement but that
a ‘light touch’ approach by ministers in implementing the
legislation.
We are of the opinion that the disqualification
of a charity steward from membership of OSCR is inappropriate. There
are many individuals who currently hold positions within charities in
Scotland who would possess appropriate knowledge and skills for the
role of OSCR membership and would be considered to be excellent candidates
for this position, yet would be debarred from membership if this criteria
was adopted.
Candidates for appointment to the Appeals
Panel should include lay members with an interest in this process and
the Scottish Executive should invite potential candidates to apply for
these positions.
What is our view of the term ‘charity
steward’?
SPPA is uncomfortable with the term ‘charity steward’. We
do however appreciate the challenge to overcome the difficulty in using
the term trustee that may interfere with the term as defined by Ascots
Law. In Scotland and across the UK, the terms ‘trustee’
or ‘board member’ are universally used to describe management
committee members of charities. For charities, which are also companies
limited by guarantee, the term ‘director’ is used to describe
board members. It is our view that further scrutiny of the legal difficulty
is made and, if at all possible legally, the term ‘trustee’
be retained and enshrined within the legislation. Guardian or Governor
may also be more acceptable terms.
Powers to deal with wrongdoing
in Charities (Chapters 3.4)
The powers appear commensurate with the object of the proposed bill
and the regulation of charitable organisations. However, the ‘Investigations
and Actions’ section does not make any recommendation where the
case of misconduct, after enquiry, is found to be a criminal act. It
would give more clarity to the flow chart if, in addition to the OSCR’s
actions to the Court of Session, at a relevant stage the matter is also
referred to the Procurator Fiscal to pursue criminal proceedings.
SPPA welcomes the proposal to allow free
access to the appeals process and that consideration of any appeal,
initially, would be conducted by OSCR. This would allow them to reconsider
their earlier decision based on additional information with the option
to then refer to an independent appeals panel.
Regulating Charity Fundraising
(Chapter 3.5)
SPPA supports the principle of self-regulating in charity fundraising
but would wish to see safeguards by Scottish Ministers should self-regulation
fail within the agreed time-frame.
Conclusion
SPPA warmly welcomes the progress made in the past few months leading
up to this proposed Bill. Charities, if governed effectively and properly,
need not fear any aspect of the proposed Bill. We do however urge the
Scottish Executive to exercise great care in how it promotes the legislation
among small voluntary organisations many of whom are still reeling from
the worthwhile but daunting challenges of implementing policies and
procedures to comply with recent legislative initiatives including Part
V of the Police Act 1997; the Regulation of Care (Scotland) Act 2001;
the Protection of Children (Scotland) Act 2003 and the latest directives
from the Disability Discrimination Act 1995.
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