Chamber and committees

A consultation with the Information Commissioner’s Office has been carried out as required by the general data protection regulations. As part of the consultation, the Information Commissioner’s Office raised some points that were addressed during the policy development stage. Any amendments made by this bill and involving the processing of personal data all operate within the framework of and, importantly, are consistent with general data protection regulation and the Data Protection Act 2018.

There is a strong argument for members of the public being able easily to access charities’ financial information and information about those who are doing the important work of running charities, given that that involves having responsibility for charitable property and for donations from the public. It is also important that those provisions are accompanied by appropriate safeguards. The dispensation mechanisms that we spoke about earlier allow for certain information to be excluded from the register, the statement of accounts and the record of removed trustees, where inclusion of such information would be

“likely to jeopardise the safety or security of any person”

We covered that earlier.

Rather than concerns having been raised, there are points to consider. As I have just explained, those have been taken on board.

First, it is important to say that any appointment of interim trustees would very much be a time-limited measure to safeguard charities. There might be a scenario in which there is a falling-out within a charity, the trustees all walk away, the charity’s good work cannot continue and something has to be done to safeguard the work of that charity while new trustees are appointed. The circumstances would be very specific and would be time limited.

Interim trustees would not routinely be remunerated. The 2005 act sets out the rules for charity trustee remuneration, starting from the basis that, in general, trustees should not be remunerated for their role as a trustee, although trustees can reclaim expenses—such as the cost of travelling to a trustee meeting—from the charity, and interim trustees would be able to reclaim expenses from the charity in the same way. I think that that would only be fair because, if we do not put that provision in place, there might be financial barriers that prevent someone who does not have a particularly great income from serving as a trustee, whether or not that is on an interim basis. We do not want to put barriers in the way of that person. I hope that my answer has clarified that issue.

I think that OSCR has indicated that interim trustee positions would, for example, be advertised in the local press, and a recruitment panel would be convened with the assistance of the local third sector interface, such as SCVO or a similar organisation. The expectation is that TSIs for each local authority area could also hold a list of individuals who are willing to step in and act as temporary trustees. As you said, that situation will not happen very often, and it just requires an urgent response for a time-limited period, so having that as a back-up sounds quite sensible.

As I have said, I think that diversity is vital. We want charities to be able to draw on people from various backgrounds, but the law needs to treat all charity trustees equally.

With regard to whether OSCR would apply a waiver from disqualification, it would have to do that on the circumstances of the case, which would involve looking at whether the person concerned posed a risk to the charity. That would be the important thing rather than whether the person came from a diverse background.

OSCR would probably take quite an objective test as to whether the person’s disqualification—or whether applying a waiver—would pose a risk to the charity. I think that that is how OSCR would set up the application process for a waiver. Caroline, you might want to make it a bit clearer than I have.

That is a record of around 50 individuals who have been removed from being a charity trustee by the Court of Session since 1990—following an application from OSCR or its predecessor. The reason for their removal would be serious concerns about their conduct while they were serving as a charity trustee. It is important that charities are able to find out whether a person that they might wish to recruit has been removed by the courts from that role in the past.

I do not believe that the provision will result in cases of mistaken identity, because, if the searcher is unclear as to the identity of an individual—for example, if they are searching for John Smith—they can contact OSCR with further information to establish identity. The Charity Commission for England and Wales already employs a similar search function in relation to removed individuals in that jurisdiction and it works perfectly well.

I take your point about whether there is an awareness issue here, but I would just say that disqualification on grounds of bankruptcy applies during the period when the bankruptcy is undischarged. Perhaps communication from OSCR will make it very clear that, once the bankruptcy is discharged, the disqualification will fall away and the individual will be free to take up a trustee position, should they wish to do so, or the individual can apply for a waiver. As I have said, there might need to be some communication from OSCR with regard to that process in order to make things clear.

The other point that I should make is that being disqualified does not stop someone volunteering or working with the charity in a role other than that of a trustee and having a different kind of day-to-day interaction with the charity. What will be important is communication from OSCR to ensure that people understand the current process, the waiver and the opportunity for the individual in question to continue their relationship with a charity in some other role.

I have just set out what is important. We take the point about the need to ensure diversity of experience on charity boards; that is important. However, it is also important that the law treats all charity trustees equally and that no trustee position—such as the treasurer or chair, for example—is more responsible as far as charity regulation is concerned. All trustees are equally responsible for the charity.

I would just reiterate that a person who is otherwise disqualified can apply to OSCR for a waiver from disqualification. Such a mechanism is appropriate in ensuring that disqualification rules are fair and proportionate, and it will serve the Scottish charitable sector well.

If the outcome is that legislation is required—be it secondary legislation or primary legislation—we should be open-minded about that. Clearly, we need to wait and see what comes out of the review. If the review concludes that there is a need for change, which in turn requires legislative change, we will, of course, have to consider that, and we will have to examine where in the parliamentary schedule that would be possible. At the moment, I am fairly open-minded about that.

As I set out in my opening remarks, one of the overarching aims of the bill is to increase transparency and accountability in the charity sector. Responding directly to the views of the public in OSCR’s surveys and giving people the ability to see how a charity has spent the donations that it has received and who has made those decisions are key elements in increasing public trust. To go back to the provisions in the bill, publishing charity accounts and providing the names of trustees on the register will help to provide the increased transparency and accountability that the public are looking for.

In addition, the bill will bring information about Scottish charities up to the same standard that there is in other parts of the United Kingdom. That is important and is a key plank of the bill. It is not that there is a major issue with public confidence, but anything that can be done to strengthen the public’s confidence in the donations that they give and in accountability and transparency is important.

You would not expect the detail of implementation to be in the bill, because OSCR, as an independent public body, will want to detail how it will implement the new powers and duties. OSCR has said that it intends to produce guidance on various provisions in the bill, alongside relevant communication campaigns. It has given evidence to the committee on some of those plans, and the bill team is working closely with it on the commencement and implementation plans, to ensure a phased roll-out.

It is probably important to make the point that the bill does not make fundamental changes to the way in which charities are regulated; it is about enhancing and clarifying the existing regime. Apart from the inclusion of trustee names on the register and the provision to OSCR of the names and addresses of trustees for the internal schedule, most charities will not see a huge difference in how they are regulated.

However, communication is going to be important, and OSCR has that well in hand, by the sound of it.