Charity Law consultation: Call for museums sector response
The Scottish Government is consulting on the Charities and Trustee Investment (Scotland) Act 2005. Due to calls from the public for more clarity around the work of charities and recent cases of malpractice, the Scottish charity regulator, OSCR, has proposed a series of amendments to existing charity law to address some of these concerns.
MGS plans to submit a response to the consultation and is keen to hear from the museums sector on how they feel the proposed changes may affect them.
MGS considers that most of the proposed changes are reasonable and proportionate, or require only minor amendment. Some of the recommendations, however, could potentially impact on the Scottish museums sector and, therefore, require further consideration.
We have summarised our position with respect to the selected areas of the consultation, below. If you have any additional comments on the proposals included or the position suggested by MGS, please do notify firstname.lastname@example.org no later than 1 February 2019. If you wish to submit a response independently you can do so through the Scottish Government Consultation website before 1st April 2019.
The most contentious areas from the perspective of the museums sector are sections 8 and 10, and MGS would be particularly grateful for input with respect to these areas.
SECTION 1: Publishing annual reports and accounts in full for all charities on the Scottish Charity Register
To give OSCR legal power to publish the annual reports and accounts of all charities registered in Scotland, without having to redact all the personal information.
Support – with conditions of minimising the administrative burden for charities and keeping personal identifying information hidden.
SECTION 2: An internal database and external register of charity trustees
To allow OSCR to create a new register that will record trustee names, dates of birth (for identification purposes), home addresses and email addresses.
SECTION 3: Criteria for automatic disqualification of charity trustees and individuals employed in senior management positions in charities
To ensure these criteria in Scotland for people who can be disqualified as a charity trustee is consistent with requirements in the rest of the UK – this would include those in senior management positions in a charity, such as chief executive and finance director.
Support without qualification.
SECTION 4: A power to issue positive directions to charities
To give OSCR a power to issue positive directions such as with respect to address poor governance.
Support – with a qualification around the impact on the capacity to deliver or maintain this standard for all charities and for OSCR to consider exploring working with (for example) MGS and AIM or others to ensure this is done in a supportive way.
SECTION 5: Removal of charities from the Scottish Charity Register that are persistently failing to submit annual reports and accounts and may no longer exist
To give OSCR the powers to remove a charity from the register based on persistently failing to comply with legal duties, for example providing annual reports.
Support – without qualification
SECTION 6: All charities in the Scottish Charity Register to have and retain a connection in Scotland
To require all charities in Scotland to have a connection to or activities in Scotland.
Support – with qualification.
SECTION 7: Inquiries into the former charity trustees of bodies which have ceased to exist and bodies which are no longer charities
To allow OSCR to investigate people who were involved in running a former charity so that that they can be permanently disqualified where appropriate.
Support – without qualification
SECTION 8: De-registered charities’ assets and public benefit
To require that former charities use their remaining charitable assets for public benefit, so individuals cannot profit from assets, like property or cash that were once charitable.
Not support. MGS could only support this if OSCR ensured collections held by Trusts were not considered assets and would, therefore, not be capable of being sold for cash for charitable benefits.
SECTION 9: The speed and efficiency of OSCR’s powers to gather information when making inquiries
To change the law so that OSCR can request information about former charities and those misrepresenting themselves as charities.
support – without qualification.
SECTION 10: The reorganisation of charities established under royal charter, warrant or enactment
The 2005 Act is unclear whether OSCR can approve reorganisation schemes proposed by charities established under Royal charter or an Act of Parliament Some charities established in this way have to resort to making changes through private bills in Parliament, which OSCR consider is not a good use of a charity’s money or the Parliament’s time.
MGS is undertaking additional work on this area as there could be implications here with respect to museums established in this way. We will be liaising directly with those venues which we know to have been formed in this way. If you think this may affect your museum, please contact email@example.com.
A copy of the consultation document is available at https://bit.ly/2simd11
Should you respond to the consultation directly, we would be grateful if you could share a copy of your submission with MGS.