Chamber and committees

The problem is that they need the individual’s consent to get a medical report, which might mean the trustees having to persuade the person in question, who might say that they are quite capable. If that person says no, the trustees have no power to take it further.

Okay—I will move on.

The Scottish Law Commission told us in evidence that an aggrieved trustee who wanted to challenge a decision on their capacity could use common law to go to court. You have already mentioned that, but do you think that that sort of thing should be explicit in the bill instead of just being left to common law?

In that case, minister, what advice would you give to the lady who came to the committee on 23 May and said, “I don’t know where my trust fits in”? What does she—and other laypeople who are trustees—do if there is no legal definition?

It was amendments 14, 16 and 20. Have they been moved yet?

I appreciate the comments that the cabinet secretary has made. Would she be open to negotiation before stage 3 about a later date? The principle of amendment 23 is that a review must take place before the current parliamentary session finishes, which is in three years’ time. Does she accept that principle? If so, would she be open to discussions before stage 3 about dates?

On a point of order, convener. Do we not have to go back and move the other amendments? We have not moved every other amendment yet, have we?

I thank the cabinet secretary and Paul O'Kane for their contributions. As the cabinet secretary will be aware, we have already agreed on exceptions—for example, Scottish charitable incorporated organisations are excluded from the provision.

On Paul O’Kane’s point, I will have to check. I will not press the amendment, because I would like to clarify the matter. One of the charitable objectives is the promotion of religion, so I would have thought that the fallback scenario would be that, in order to get charitable status, you would have to prove to OSCR that you were a genuine religious organisation. However, I will seek to clarify that before stage 3.

I hear what the cabinet secretary is saying, but, with regard to the costs and the public benefit, to me, what we are hearing is more along the lines of not doing this. I just cannot see how it is appropriate. For some churches, it will be something that they will have to do annually, because the church secretary or the session clerk will keep changing and, every time that that happens, they will have to redo it, which will have a cost.

However, I would like to reflect on the points that have been made by the cabinet secretary and Mr O’Kane, so I will not press amendment 21.

Amendment 21, by agreement, withdrawn.

Section 3 agreed to.

After section 8

I remind colleagues that I am a member of the Church of Scotland and a retired Baptist minister.

The proposed new section that amendment 21 seeks to insert in the bill represents an attempt to balance the two things that we want the bill to do. We want there to be transparency so that the public can have the confidence of knowing who the trustees of every charity are and being able to hold them to account. At the same time, we want charities to be able to flourish and to attract trustees. The bill seeks to achieve that balance, and I think that, by and large, it has done so. That is why we support the bill. I should probably put on the record the fact that we will support the Government amendments as we go through them one by one.

However, in this particular area, I think that the balance has gone too far away from charities. The issue here relates to the process. The regulations that my amendment seeks to amend would be disproportionate and hugely costly for charities to implement. We heard in the stage 1 debate that what they require could cost the Church of Scotland alone more than £100,000. Last night, committee members received an email from the Episcopal Church that illustrated what it would have to do. In one diocese, it has 50 church buildings, 40 rectories or manses and 25 church halls, which comes to a total of 115 properties. With each congregation having a minimum of three associates, the number of registrations required would be five times 115 times three, which equals 1,725. That is for one diocese. That would have to be multiplied by seven to give the figure for the whole of Scotland.

All of that would require legal work to be done, with solicitors having to be involved every time. The bill already provides for a public register of charity trustees, so there is no hiding for trustees, but it would be time consuming and expensive to go through the proposed process. Over the past number of months, the committee has taken evidence on how hard it is for many people in our society to keep going—they are having to rely on things such as food banks, which are often provided by religious bodies. The question for the committee today is whether we want £100,000 to be spent on helping people to come out of poverty, helping children and young people and supporting all the activities that the various churches and religious organisations are involved in day in, day out or whether we want that money to go into lawyers’ hands.

I think that amendment 21 gets the balance right. It would mean that there would be accountability and openness with regard to who trustees are, but there would not be a need to go through a slightly bureaucratic system that, as far as I can see, will only benefit lawyers.

I move amendment 21.

I am grateful for the cabinet secretary’s remarks about amendment 22. In the light of her offer to work on something that would perhaps be better before stage 3, I will not press amendment 22.

Amendment 22, by agreement, withdrawn.

Amendment 22 picks up something that came across in the evidence that we took at stage 1: third sector charities’ awareness of changes in the bill—if it becomes an act—and the effect that it will have on them. Concern was raised by some charities and, in particular, by the Scottish Council for Voluntary Organisations, that the communication between OSCR and them had not quite worked and that some charities were unaware of what was proposed in the consultation and in the bill. There was concern that, if the bill becomes an act, charities might not be aware.

Amendment 22 therefore puts a bit of gentle pressure on OSCR to do a bit more on communication, and it allows the Parliament to have the satisfaction of knowing that that has happened, so that the Parliament—perhaps, in particular, this committee—can review matters in two years’ time. I hope that that is helpful to OSCR and, more importantly, to the third sector.

When it comes to amendment 23, one of the striking things that came out in evidence was not what was in the bill but what was not in the bill. It would be fair to say that there was disappointment in certain sectors that the bill did not go further and faster. I understand that we had Covid and that the cabinet secretary has a lot on her plate, but there is an appetite in civic society generally for a more radical reform of charity law in Scotland.

I think that I am right in saying that, in the stage 1 debate, the cabinet secretary suggested that there would not be any further legislation in this area during this parliamentary session. Again, I understand that, but I am concerned that, once the bill becomes an act—before the summer recess, I hope—the issue will go off our agenda and may go off the Scottish Government’s agenda because other things are going on. Again, therefore, this is an opportunity for the Government to take forward what I know it wants to do, but at such a scale that this Parliament can at least see the direction that the Scottish Government is going in; then the next Parliament can take that forward, I hope, and bring forward more legislation. Amendment 23 represents an encouragement—a stick and a carrot, I hope—for the Scottish Government, which, I am sure, the cabinet secretary will welcome.

I move amendment 22.