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The Charities (Pre-consolidation Amendments) Order 2011

Draft. This instrument was laid in draft and may differ from the one made. Look for the made version under its title.

Draft 2011, ISBN 9780111507575

Original text. legislation.gov.uk does not revise statutory instruments, so later amendments are not shown here. Changes made to it are listed under each provision when known.

Draft Order laid before Parliament under section 74(4) and (5) of the Charities Act 2006, for approval by resolution of each House of Parliament.

Charities

Made ***

Coming into force in accordance with article 1

This Order is made in exercise of the powers conferred by sections 74(2) and (7), 76 and 78(6) of the Charities Act 2006f1.

The Minister for the Cabinet Office is satisfied that the amendments made by this Order will facilitate, or are otherwise desirable in connection with, the consolidation of enactments relating to charitiesf2.

A draft of this Order has been laid before Parliament in accordance with section 74(4) and (5) of that Act and approved by resolution of each House of Parliament.

Accordingly, the Minister makes the following Order:

Annotations to the whole text

Footnotes

f1

2006 c.50.

f2

“Amendments” and “the enactments relating to charities” are defined in section 76(5) of the Charities Act 2006.

Contents

  1. 1Citation and commencement
  2. 2Amendments of enactments relating to charities
  3. Signature
  4. Schedule: AMENDMENTS OF ENACTMENTS RELATING TO CHARITIES
  5. Part 1: AMENDMENTS OF RECREATIONAL CHARITIES ACT 1958 (c. 17)
  6. 1Paragraph 1
  7. 2Paragraph 2
  8. 3Paragraph 3
  9. Part 2: AMENDMENTS OF CHARITIES ACT 1993 (c. 10)
  10. 4Paragraph 4
  11. 5Paragraph 5
  12. 6Paragraph 6
  13. 7Paragraph 7
  14. 8Paragraph 8
  15. 9Paragraph 9
  16. 10Paragraph 10
  17. 11Paragraph 11
  18. 12Paragraph 12
  19. 13Paragraph 13
  20. 14Paragraph 14
  21. 15Paragraph 15
  22. 16Paragraph 16
  23. 17Paragraph 17
  24. 18Paragraph 18
  25. 19Paragraph 19
  26. 20Paragraph 20
  27. 21Paragraph 21
  28. 22Paragraph 22
  29. 23Paragraph 23
  30. 24Paragraph 24
  31. 25Paragraph 25
  32. 26Paragraph 26
  33. 27Paragraph 27
  34. 28Paragraph 28
  35. 29Paragraph 29
  36. 30Paragraph 30
  37. 31Paragraph 31
  38. 32Paragraph 32
  39. 33Paragraph 33
  40. 34Paragraph 34
  41. Part 3: AMENDMENTS OF CHARITIES ACT 2006 (c. 50)
  42. 35Paragraph 35
  43. Part 4: AMENDMENTS RELATING TO THE MEANING OF “CHARITY”
  44. 36Paragraph 36
  45. 37Paragraph 37
  46. 38Paragraph 38
  47. 39Paragraph 39
  48. 40Paragraph 40
  49. 41Paragraph 41
  50. 42Paragraph 42
  51. 43Paragraph 43
  52. 44Paragraph 44
  53. 45Paragraph 45
  54. 46Paragraph 46
  55. 47Paragraph 47
  56. 48Paragraph 48
  57. Explanatory note

1Citation and commencement

This Order may be cited as the Charities (Pre-consolidation Amendments) Order 2011 and comes into force (in accordance with section 76(3) of the Charities Act 2006) immediately before the Charities Act 2011 comes into force.

2Amendments of enactments relating to charities

(1)

The Schedule (which contains amendments of enactments relating to charities) has effect.

(2)

Subject to paragraph (3), any amendment made by the Schedule has the same extent as the provision amended.

(3)

The amendment of section 1 of the Recreational Charities Act 1958f1 made by paragraph 1 of the Schedule has the same effect in relation to the law of Scotland and Northern Ireland as the amendment of that section by section 5 of the Charities Act 2006f2.

Signature

DRAFT

Parliamentary Secretary

Cabinet Office

1

In section 1(1) of the Recreational Charities Act 1958f1, for “the principle that a trust or institution to be charitable must be for the public benefit” substitute “the requirement in section 2(1)(b) of the Charities Act 2006 that a purpose falling within section 2(2) of that Act must be for the public benefit if it is to be a charitable purpose”.

2

Omit section 3(1) of that Actf1.

3

Omit section 5 of that Act.

4

In section 1A(4) of the Charities Act 1993f1, for “other” substitute “of another”.

5

In section 2(1) of that Actf1 for “by that name a corporation sole having perpetual succession and using an official seal which” substitute “a corporation sole whose official seal”.

6

In section 3A of that Actf1—

(a)

in subsection (4)(c) after “any” insert “charity or”;

(b)

for paragraph (c) of subsection (11) and the word “and” preceding that paragraph substitute—

“(c)

subsections (6)(a) and (7)(a),

(d)

in subsection (8), paragraph (a) and the words following paragraph (b),

(e)

subsection (9), and

(f)

this subsection,”.

7

(1)

In the following provisions of that Act, for “furnish” substitute “provide”—

(a)

section 8(3)(a) and (b)f1;

(b)

section 9(1)(a) and (b)(i) and (4)f2;

(c)

section 28(9)f3;

(d)

section 84f4.

(2)

In the following provisions of that Act, for “furnished” substitute “provided”—

(a)

section 9(3)f5;

(b)

section 31A(2)(b) and (c)f6.

(3)

In the following provisions of that Act, for “furnishing” substitute “provision”—

(a)

section 85(1)(b)f7;

(b)

section 97(2)(a) and (b).

(4)

Any regulations made or having effect as if made under section 85 of that Act are to be read as if any reference in the regulations to the furnishing of a document were a reference to the provision of the document.

8

(1)

In section 14(5)(c) of that Act, for “such claim” substitute “claims made in accordance with paragraph (b)”.

(2)

In section 14(6)(a) of that Actf1, for “any such claims” substitute “claims made in accordance with subsection (5)(b)”.

9

In section 14B of that Actf1, after subsection (6) insert—

“(7)

In this section references to the original purposes of a gift are to be read, where the application of the property given has been altered or regulated by a scheme or otherwise, as referring to the purposes for which the property is for the time being applicable.”.

10

(1)

In section 17(2) of that Actf1, omit “and a draft of the order shall be laid before Parliament”.

(2)

After section 17(2) of that Act insert—

“(2A)

Subject to subsections (3) and (5), an order under subsection (2) is subject to annulment in pursuance of a resolution of either House of Parliament.”.

(3)

In section 17(3) of that Act—

(a)

omit “Without prejudice to the operation of section 6 of the Statutory Instruments Act 1946 in other cases,”, and

(b)

for “the order shall not be made unless the draft has been approved by” substitute “no order may be made unless a draft of the order has been laid before and approved by a”.

11

(1)

In section 18(12) of that Actf1, for “under this section otherwise than by virtue of subsection (1)” substitute “by virtue of subsection (2), (4) or (5)”.

(2)

In section 22(3) of that Actf2, for “section 18” substitute “section 18(1)(iii)”.

12

(1)

In section 20(2)(b) of that Actf1, for “to the parish or community council (or, where a parish has no council, to the chairman of the parish meeting)” substitute “to—

(i)

the parish council or, if the parish has no council, the chairman of the parish meeting, or

(ii)

the community council or, if the community has no council, the council of the county or the county borough.”.

(2)

In section 79(7) of that Actf2, in paragraph (a) for “for references in subsections (1) and (2)” substitute “for references in subsection (1)” and after paragraph (a) insert—

“(aa)

for references in subsection (2)f3 to a parish, a parish council or a parish meeting there shall be substituted respectively references to a community, a community council or the council of the county or (as the case may be) county borough;”.

13

In section 22(1) of that Act, after “orders of the court” insert “in the same way”.

14

In section 26(3) of that Act—

(a)

for “thereby authorised” substitute “authorised by the order”, and

(b)

for “therewith” substitute “with that authority”.

15

In section 36(4)(a) of that Actf1, omit “or of the Incorporated Society of Valuers and Auctioneers”.

16

In section 39(1) of that Actf1, for “registered disposition” substitute “registrable disposition”.

17

(1)

In section 43(1) of that Actf1, for “£100,000 or such other sum as is” substitute “the sum”.

(2)

In section 43(9) of that Actf2, for “, of a charity for a financial year” substitute “for a financial year of a charity which is a company”.

18

In section 43A(5) of that Actf1, for “Commission” substitute “Charity Commission”.

19

(1)

In section 57(1) of that Actf1, for “and shall preserve all documents sent to it under this Part of this Act” substitute “and documents sent to the Commission under this Part shall be kept by the Commission for such period as it thinks fit”.

(2)

For section 57(2) of that Act substitute—

“(2)

Documents kept under this section are to be open to public inspection at all reasonable times; and any person who is provided with a copy or extract of any document kept under this section may require it to be certified by a certificate signed by a member of the staff of the Commission.”.

20

In section 69I(3)(b) of that Actf1, for “register of friendly societies” substitute “mutual societies register”.

21

In section 69M(5) of that Actf1, after “The resolution” insert “of the transferor CIO”.

22

(1)

In section 73D of that Actf1—

(a)

in subsection (1)(c) omit “, reporting accountant”;

(b)

in subsection (5)—

(i)

in paragraph (a) for “section 43B above”, and

(ii)

in paragraph (b) for “that section”,

substitute “Part 6 (including Schedule 5A)f2”.

(2)

Nothing in sub-paragraph (1)(a) affects the operation of sections 73D and 73Ef3 of the 1993 Act in relation to a person who is, or has been, a reporting accountant appointed to examine or report on a charity’s accounts relating to a financial year beginning before 1st April 2008.

23

In section 74B(11) of that Actf1, for “any reference to any obligation imposed on the charity trustees by or under section 74 includes” substitute “the references in sections 74(8)(b) and 74A(2) to any obligation imposed on the charity trustees by or under section 74 include”.

24

(1)

In section 79(2) of that Act, omit “, ratepayers”.

(2)

Nothing in sub-paragraph (1) affects any appointment of a charity trustee made before the commencement of that sub-paragraph.

(3)

Where, immediately before the commencement of sub-paragraph (1)—

(a)

the charity trustees of a parochial charity included one or more persons elected by ratepayers, or

(b)

the sole charity trustee of a parochial charity was elected by ratepayers,

then, on and after the commencement of that sub-paragraph, section 79(2) of that Act has effect in relation to that parochial charity as if the person or persons so elected had been elected by the local government electors.

25

In section 80(1) of that Actf1, after “in relation to a charity” insert “; and for the purposes of section 31A(10) as it has effect by virtue of this subsection, the reference in section 31A(10)(b) to the charity trustees of the charity is to be read as a reference to the persons having the general control and management of the administration of the recognised body”.

26

In section 82 of that Act—

(a)

in subsection (1), for “assurances or other deeds or instruments” substitute “documents”, and

(b)

in subsections (1), (2)(a), (3) and (4) for “deed or instrument” substitute “document”.

27

In section 84 of that Actf1, for “open to inspection under Parts II to VI of this Act or section 75D” substitute “open to or available for inspection under any provision of this Act”.

28

Section 86(3) of that Actf1 has effect, except for the purposes of section 2B(9) of that Actf2, subject to the following amendments—

(a)

in paragraph (a), after “cases” insert “or descriptions of case or different purposes or areas”, and

(b)

in paragraph (b), after “consequential” insert “, transitory”.

29

In section 89 of that Actf1—

(a)

in subsection (2), omit “(without prejudice to the requirements of this Act where the order is subject to appeal)”; and

(b)

in subsection (5), after “so made” insert “and may include transitional provisions or savings”.

30

In the definition of “financial year” in section 97(1) of that Actf1, for the words following paragraph (b) substitute “but this is subject to any provision of regulations made by virtue of paragraph 3(5) of Schedule 5A to this Act (financial years of subsidiary undertakings).”.

31

In the Table in Schedule 1C to the 1993 Actf1—

(a)

in the first entry relating to section 56(4) of the 1993 Act, in column 1, omit “of a charity”;

(b)

in the entry relating to section 61(1) or (2) of that Act—

(i)

in column 1 omit “a charity which is”; and

(ii)

in column 2 omit “(b) the charity itself”;

(c)

in each of the entries relating to section 50(1), 56(4) and 61(1) or (2) of that Act, in column 2, after “trustees of the charity” insert “(within the meaning of section 62 of this Act)”;

(d)

for the entry relating to section 69(4) of that Act substitute—

“

1

2

3
Order made by the Commission under section 69(4) of this Actf2 in relation to a charity which is a company, or a decision of the Commission not to make such an order in relation to such a charity.

The persons are—

(a) the charity trustees of the charity,

(b) the charity itself,

(c) in the case of a decision not to make an order, the auditor, and

(d) any other person who is or may be affected by the order or the decision.

Power to—

(a) quash the order or decision and (if appropriate) remit the matter to the Commission;

(b) substitute for the order any other order of a kind the Commission could have made;

(c) make any order which the Commission could have made.

”

(e)

in—

(i)

the second entry relating to section 69E of that Act, in column 1,

(ii)

the entry relating to section 69H of that Act, in column 1, and

(iii)

the second entry relating to section 69K of that Actf3, in column 1,

for “not to grant” substitute “to refuse”;

(f)

in the second entry relating to section 69M(1) of that Act, in column 1, for “not to confirm” substitute “to refuse to confirm”;

(g)

after the entry relating to section 96(5) or (6) of that Actf4 insert—

“

1

2

3
Order made by the Commission under paragraph 6(5), or by virtue of paragraph 7(2), of Schedule 5A to this Act requiring the group accounts of a parent charity to be audited.

The persons are—

(a) the charity trustees of the parent charity,

(b) (if a body corporate) the parent charity itself, and

(c) any other person who may be affected by the order.

Power to—

(a) quash the order;

(b) substitute for the order any other order which could have been made by the Commission;

(c) add to the order anything which would have been contained in an order made by the Commission.

Order made by the Commission by virtue of paragraph 8(4) of Schedule 5A to this Act in relation to a member of a group, or a decision of the Commission not to make such an order in relation to a member of a group.

The persons are—

(a) the charity trustees of the member of the group,

(b) (if a body corporate) the member of the group itself,

(c) in the case of a decision not to make an order, the auditor, independent examiner or examiner, and

(d) any other person who is or may be affected by the order or the decision.

Power to—

(a) quash the order or decision and (if appropriate) remit the matter to the Commission;

(b) substitute for the order any other order of a kind the Commission could have made;

(c) make any order which the Commission could have made.

”

32

In Schedule 3 to that Actf1, in column 2, in paragraphs 1, 2(iii), 3, 3A, 4(iii) and 4A(iii), for “comprising” substitute “which includes” and in paragraphs 5 and 6, for “comprising or adjacent to the area in column 1” substitute “which—

(i)

includes, or include, the area in column 1, or

(ii)

is, or are, adjacent to the area in column 1”.

33

In Schedule 5A to that Act—

(a)

at the end of paragraph 6(7) insert “; and references in this Act to an auditor have effect in relation to sub-paragraph (4)(c) as references to the Auditor General for Wales acting under sub-paragraph (4)(c) as an auditor.”;

(b)

in paragraph 8—

(i)

in sub-paragraph (2)(e), for “or those applied” substitute “or of section 43(3) of this Act as applied”;

(ii)

at the end of sub-paragraph (4) insert “and for this purpose the reference in section 44(2)(b) to the charity trustees for the time being of the charity concerned is to be construed as a reference to the charity trustees for the time being of such member of the group as the Commission thinks appropriate.”; and

(c)

in paragraph 9(1) omit “and (7)”.

34

For the avoidance of doubt, in Schedule 7 to that Act, the reference to section 10 of the Universities of Durham and Newcastle-upon-Tyne Act 1963f1 is to be read as being, and as always having been, a reference to section 18 of the 1963 Act.

35

In section 74(4)(a) and (6) of the Charities Act 2006, for “section 11” substitute “section 11(11)(a) or (b) or (13)”.

36

In—

(a)

sections 5A(7)(a) and 7D(5)(a) of the Industrial and Provident Societies Act 1965f1, and

(b)

paragraph 2 of Schedule 5 to the Reserve Forces Act 1996f2,

for “as in the Charities Act 1993” substitute “as it has under section 1(1) of the Charities Act 2006”.

37

(1)

In the provisions listed in sub-paragraph (2), omit “within the meaning of the Charities Act 1993”.

(2)

The provisions are—

(a)

section 1(3A) of the Leasehold Reform Act 1967f1;

(b)

section 5(3)(f) of the Rent (Agriculture) Act 1976f2;

(c)

section 15(2)(b) of the Rent Act 1977f3;

(d)

Grounds 6 and 14A of Schedule 2 to the Housing Act 1988f4;

(e)

paragraph 1(4)(a) of Schedule 3A to the Environmental Protection Act 1990f5;

(f)

section 33M of the Further and Higher Education Act 1992f6;

(g)

section 5(2) of the Leasehold Reform, Housing and Urban Development Act 1993f7;

(h)

the definition of “charitable housing trust” in section 158(1) of the Housing Act 1996f8.

38

In—

(a)

section 4A(6) of the Friendly and Industrial and Provident Societies Act 1968f1, and

(b)

section 32A(6) of the Friendly Societies Act 1974f2,

for “within the meaning of the Charities Act 1993,” substitute “as defined by section 1(1) of the Charities Act 2006,”.

39

In section 4(13) of the Redundant Churches and other Religious Buildings Act 1969f1—

(a)

omit the words following the definition of “prescribed charity”;

(b)

before the definition of “the Commission” insert—

  • ““charity” has the meaning given by section 96 of the Charities Act 1993f2;”; and

(c)

after the definition of “the Commission” insert—

  • ““the court” has the same meaning as in the Charities Act 1993;”.

40

(1)

In the provisions listed in sub-paragraph (2), omit the definition of “charity”.

(2)

The provisions are—

(a)

section 622(1) of the Housing Act 1985f1;

(b)

section 169(9) of the Local Government and Housing Act 1989f2;

(c)

section 58(1) of the Charities Act 1992f3;

(d)

section 23A(10) of, and paragraph 8A(6) of Schedule 22 to, the School Standards and Framework Act 1998f4.

41

Omit section 38 of the Housing Associations Act 1985f1.

42

In section 60(1) of the Landlord and Tenant Act 1987f1, omit ““charity” means a charity within the meaning of the Charities Act 1993, and”.

43

In—

(a)

section 125A of the Education Reform Act 1988f1, and

(b)

section 22A of the Further and Higher Education Act 1992f2,

omit “within the meaning of the Charities Act 1993” and for “Schedule 2 to that Act” substitute “Schedule 2 to the Charities Act 1993f3”.

44

In—

(a)

section 128(5) of the Education Reform Act 1988f1, and

(b)

sections 27(5) and 33N(10) of the Further and Higher Education Act 1992f2,

for ““charity” and “charitable purposes” have the same meanings” substitute ““charitable purposes” has the same meaning”.

45

In section 58(1)(a) of the Housing Act 1996f1, for ““charity” and “trusts”, in relation to a charity, have” substitute ““trusts”, in relation to a charity, has” and in section 64 of that Act omit the entry relating to “charity”.

46

(1)

In section 23(4)(a) of the School Standards and Framework Act 1998, for ““charity” and “institution” have” substitute ““institution” has”.

(2)

In Schedule 1 to that Actf1, in paragraph 10, for “within the meaning of the Charities Act 1993, and is an institution to which section 3A(4)(b) of that Act” substitute “and is an institution to which section 3A(4)(b) of the Charities Act 1993”.

47

In section 63(1) of the Companies (Audit, Investigations and Community Enterprise) Act 2004f1, in the definition of “English charity”, for “within the meaning of the Charities Act 1993 (see section 96 of that Act)” substitute “as defined by section 1(1) of the Charities Act 2006”.

48

In—

(a)

section 42(1) of the Criminal Justice and Court Services Act 2000f1, and

(b)

paragraphs 4(7) and 8(6) of Schedule 4 to the Safeguarding Vulnerable Groups Act 2006f2,

for ““charity” and “charity trustee” have the same meanings” substitute ““charity trustee” has the same meaning”.

Explanatory note

(This note is not part of the Order)

This Order makes minor amendments to the Recreational Charities Act 1958, the Charities Acts 1993 and 2006 and other legislation which facilitate, or are otherwise desirable in connection with, the consolidation of charity legislation by the Charities Act 2011. The Order will come into force immediately before the 2011 Act comes into force.

The amendments in the Schedule to the Order can be categorised broadly as: desirable to clarify the legislation or remove an element of ambiguity from it or necessary to remedy missed consequential provisions or clarify the definition of charity that is to apply for the purpose of various Acts of Parliament.

A detailed explanation for each provision of the Schedule has been included in the annex to the Explanatory Memorandum which is available alongside the Order on www.legislation.gov.uk.

A Regulatory Impact Assessment has not been prepared for this Order as it has no impact on business, charities or voluntary bodies.