Charities Bill

[AS INTRODUCED]

CONTENTS

PART 1

INTRODUCTORY

1. Meaning of "charity"
2. Meaning of "charitable purpose"
3. The "public benefit" test
4. Guidance as to operation of public benefit requirement
5. Special provisions about recreational charities, sports clubs, etc.

PART 2

THE CHARITY COMMISSION FOR NORTHERN IRELAND

Establishment of the Commission

6. The Charity Commission for Northern Ireland

The Commission’s objectives, general functions, etc.

7. The Commission's objectives
8. The Commission's general functions
9. The Commission's general duties
10. The Commission's incidental powers

The official custodian for charities in Northern Ireland

11. The official custodian for charities in Northern Ireland

PART 3
THE CHARITY TRIBUNAL FOR NORTHERN IRELAND

12. The Charity Tribunal for Northern Ireland
13. Practice and procedure
14. Appeal from Tribunal
15. Intervention by Attorney General

PART 4

REGISTRATION OF CHARITIES AND CHARITABLE NAMES

The register of charities

16. Register of charities
17. Duties of trustees in connection with registration
18. Effect of, and claims and objections to, registration
19. Status of registered charity to appear on official publications, etc.

Charity names

20. Power of Commission to require charity's name to be changed
21. Effect of direction under section 20 where charity is a company

PART 5

INFORMATION POWERS

22. General power to institute inquiries
23. Power to call for documents and search records
24. Disclosure of information by and to the Commission
25. Supply of false or misleading information to Commission, etc.

PART 6

APPLICATION OF PROPERTY CY-PRÈS AND ASSISTANCE AND SUPERVISION OF CHARITIES BY COURT AND COMMISSION

Extended powers of Court and variation of charters

26. Occasions for applying property cy-près
27. Application cy-près of gifts of donors unknown or disclaiming
28. Application cy-près of gifts made in response to certain solicitations
29. Cy-près schemes
30. Charities governed by charter

Powers of Commission to make schemes and act for protection of charities, etc.

31. Concurrent jurisdiction with High Court for certain purposes
32. Further powers to make schemes or alter application of charitable property
33. Power to act for protection of charities
34. Power to suspend or remove trustees, etc. from membership of charity
35. Supplementary provisions relating to interim manager appointed for a charity
36. Power to give specific directions for protection of charity
37. Power to direct application of charity property
38. Copy of order under section 33, 34, 36 or 37, and Commission’s reasons, to be sent to charity
39. Publicity relating to schemes
40. Publicity for orders relating to trustees or other individuals

Property vested in official custodian

41. Entrusting charity property to official custodian, and termination of trust
42. Supplementary provisions as to property vested in official custodian

Establishment of common investment or deposit funds

43. Schemes to establish common investment funds
44. Schemes to establish common deposit funds
45. Meaning of "Scottish recognised body" and "England and Wales charity" in sections 43 and 44

Additional powers of Commission

46. Power to authorise dealings with charity property, etc.
47. Power to authorise ex gratia payments, etc.
48. Power to give directions about dormant bank accounts of charities
49. Power to give advice and guidance
50. Power to determine membership of charity
51. Powers for preservation of charity documents
52. Power to order taxation of solicitor’s bill
53. Power to enter premises

Legal proceedings relating to charities

54. Proceedings by Commission
55. Proceedings by other persons
56. Report of section 22 inquiry to be evidence in certain proceedings

Property held on behalf of English, Welsh and Scottish charities

57. Powers in relation to certain English, Welsh and Scottish charities

PART 7

CHARITY LAND

58. Restriction on dispositions
59. Supplementary provisions relating to dispositions
60. Release of charity rentcharges
61. Restrictions on mortgaging
62. Supplementary provisions relating to mortgaging
63. Interpretation of Part 7

PART 8

CHARITY ACCOUNTS, REPORTS AND RETURNS

64. Duty to keep accounting records
65. Annual statements of accounts
66. Annual audit or examination of charity accounts
67. Supplementary provisions relating to audits, etc.
68. Duty of auditors, etc. to report matters to Commission
69. Annual reports
70. Public inspection of annual reports, etc.
71. Annual returns by charities
72. Offences
73. Group accounts

PART 9

CHARITY TRUSTEES

CHAPTER 1

INCORPORATION OF CHARITY TRUSTEES

74. Incorporation of trustees of a charity
75. Estate to vest in body corporate
76. Applications for incorporation
77. Nomination of trustees, and filling up vacancies
78. Liability of trustees and others, notwithstanding incorporation
79. Certificate to be evidence of compliance with requirements for incorporation
80. Power of Commission to amend certificate of incorporation
81. Records of applications and certificates
82. Enforcement of orders and directions
83. Gifts to charity before incorporation to have same effect afterwards
84. Execution of documents by incorporated body
85. Power of Commission to dissolve incorporated body
86. Interpretation of Chapter 1

CHAPTER 2

OTHER PROVISIONS RELATING TO CHARITY TRUSTEES

87. Persons disqualified for being trustees of a charity
88. Person acting as charity trustee while disqualified
89. Remuneration of trustees, etc. providing services to charity
90. Supplementary provisions for purposes of section 89
91. Disqualification of trustee receiving remuneration under section 89
92. Power to relieve trustees, auditors, etc. from liability for breach of trust or duty
93. Court’s power to grant relief to apply to all auditors, etc. of charities which are not companies
94. Trustees’ indemnity insurance
95. Trustees

PART 10

CHARITABLE COMPANIES

96. Winding up
97. Alteration of objects clause
98. Invalidity of certain transactions
99. Requirement of consent of Commission to certain acts
100. Name to appear on correspondence, etc.
101. Status to appear on correspondence, etc.
102. Duty of charity’s auditors, etc. to report matters to Commission
103. Investigation of accounts
104. Annual audit or examination of accounts of charitable companies

PART 11

CHARITABLE INCORPORATED ORGANISATIONS

Nature and constitution

105. Nature and constitution
106. Constitution
107. Name and status
108. Offences connected with name and status

Registration

109. Application for registration
110. Effect of registration

Conversion, amalgamation and transfer

111. Conversion of charitable company or registered industrial and provident society
112. Conversion: consideration of application
113. Conversion: supplementary
114. Conversion of community interest company
115. Amalgamation of CIOs
116. Amalgamation: supplementary
117. Transfer of CIO’s undertaking

Winding up, insolvency and dissolution

118. Regulations about winding up, insolvency and dissolution

Miscellaneous

119. Power to transfer all property of unincorporated charity to one or more CIOs
120. Further provision about CIOs
121. Regulations

PART 12

POWERS OF UNINCORPORATED CHARITIES

Transfer of property

122. Power to transfer all property of unincorporated charity
123. Resolution not to take effect or to take effect at later date
124. Transfer where charity has permanent endowment

Modification of purposes, powers or procedure

125. Power to replace purposes of unincorporated charity
126. Power to modify powers or procedures of unincorporated charity

Spending of capital

127. Power of unincorporated charities to spend capital: general
128. Power of larger unincorporated charities to spend capital given for particular purpose
129. Power to spend capital subject to special trusts

PART 13

FUNDING OF CHARITABLE INSTITUTIONS

CHAPTER 1

PUBLIC CHARITABLE COLLECTIONS

Preliminary

130. Regulation of public charitable collections
131. Charitable appeals that are not public charitable collections
132. Other definitions for purposes of this Chapter

Restrictions on conducting collections

133. Restrictions on conducting collections in a public place
134. Restrictions on conducting door to door collections
135. Exemption for local, short-term collections

Public collections certificates

136. Applications for certificates
137. Determination of applications and issue of certificates
138. Grounds for refusing to issue a certificate
139. Power to call for information and documents
140. Transfer of certificate between trustees of unincorporated charity
141. Withdrawal or variation, etc. of certificates

Permits

142. Applications for permits to conduct public charitable collections
143. Determination of applications and issue of permits
144. Refusal of permits
145. Withdrawal or variation, etc. of permits
146. Appeals against decisions of Commission

Supplementary

147. Regulations
148. Offences

CHAPTER 2

CONTROL OF FUND-RAISING FOR CHARITABLE INSTITUTIONS

Control of fund-raising

149. Prohibition on professional fund-raiser, etc. raising funds for charitable institution without an agreement in prescribed form
150. Professional fund-raisers, etc. required to indicate institutions benefiting and arrangements for remuneration
151. Other persons making appeals required to indicate institutions benefiting and arrangements for remuneration
152. Exclusion of lower-paid collectors from provisions of section 151
153. Cancellation of payments and agreements made in response to appeals
154. Right of charitable institution to prevent unauthorised fund-raising
155. False statements relating to institutions which are not registered charities

Supplementary

156. Regulations about fund-raising
157. Reserve power to control fund-raising by charitable institutions

Interpretation

158. Interpretation of Chapter 2

CHAPTER 3

FINANCIAL ASSISTANCE

159. Power of Department to give financial assistance to charitable, benevolent or philanthropic institutions

CHAPTER 4

INTERPRETATION OF PART 13

160. Interpretation of Part 13

PART 14

MISCELLANEOUS AND SUPPLEMENTARY

Merger of charities

161. Register of charity mergers
162. Register of charity mergers: supplementary
163. Pre-merger vesting declarations
164. Effect of registering charity merger on gifts to transferor

Religious charities

165. Application of Act in relation to designated religious charities
166. Designation, etc. of religious charities

Institutions which are not charities under the law of Northern Ireland

167. Institutions which are not charities under the law of Northern Ireland

Other matters

168. Manner of giving notice of charity meetings, etc.
169. Manner of executing instruments
170. Transfer and evidence of title to property vested in trustees
171. Supply by Commission of copies of documents open to public inspection
172. Fees and other amounts payable to Commission
173. Enforcement of requirements by order of Commission
174. Enforcement of orders of Commission
175. Other provisions as to orders of Commission
176. Directions of the Commission
177. Miscellaneous provisions as to evidence
178. Restriction on institution of proceedings for certain offences

Supplementary

179. Orders and regulations
180. General interpretation
181. Amendments reflecting changes in company law
182. Further provision
183. Minor and consequential amendments
184. Repeals
185. Commencement
186. Short title

SCHEDULES:

Schedule 1 The Charity Commission for Northern Ireland
Schedule 2 The Charity Tribunal
Schedule 3 Appeals and applications to Tribunal
Schedule 4 References to the Tribunal
Schedule 5 Meaning of "connected persons" for purposes of section 58(2)
Schedule 6 Group accounts
Schedule 7 Further provision about Charitable Incorporated Organisations
Schedule 8 Minor and consequential amendments
Schedule 9 Repeals

A

B I L L

TO

Provide for the establishment and functions of the Charity Commission for Northern Ireland and the Charity Tribunal for Northern Ireland; to make provision about the law of charities, including provision about charitable incorporated organisations; to make further provision about public charitable collections and other fund-raising carried on in connection with charities and other institutions; to make provision about the funding of such institutions; and for connected purposes.

BE IT ENACTED by being passed by the Northern Ireland Assembly and assented to by Her Majesty as follows:

PART 1

INTRODUCTORY

Meaning of "charity"

1.— (1) For the purposes of the law of Northern Ireland, "charity" means an institution which—

(a) is established for charitable purposes only, and

(b) falls to be subject to the control of the Court in the exercise of its jurisdiction with respect to charities.

(2) The definition of "charity" in subsection (1) does not apply for the purposes of a statutory provision if a different definition of that term applies for those purposes by virtue of that or any other statutory provision.

(3) A charity shall be deemed for the purposes of this Act to have a permanent endowment unless all property held for the purposes of the charity may be expended for those purposes without distinction between capital and income, and in this Act "permanent endowment" means, in relation to any charity, property held subject to a restriction on its being expended for the purposes of the charity.

(4) The Commission may direct that for all or any of the purposes of this Act an institution established for any special purposes of or in connection with a charity (being charitable purposes) shall be treated as forming part of that charity or as forming a distinct charity.

(5) The Commission may direct that for all or any of the purposes of this Act two or more charities having the same charity trustees shall be treated as a single charity.

Meaning of "charitable purpose"

2.— (1) For the purposes of the law of Northern Ireland, a charitable purpose is a purpose which—

(a) falls within subsection (2), and

(b) is for the public benefit (see section 3).

(2) A purpose falls within this subsection if it falls within any of the following descriptions of purposes—

(a) the prevention or relief of poverty;

(b) the advancement of education;

(c) the advancement of religion;

(d) the advancement of health or the saving of lives;

(e) the advancement of citizenship or community development;

(f) the advancement of the arts, culture, heritage or science;

(g) the advancement of amateur sport;

(h) the advancement of human rights, conflict resolution or reconciliation or the promotion of religious or racial harmony or equality and diversity;

(i) the advancement of environmental protection or improvement;

(j) the relief of those in need by reason of youth, age, ill-health, disability, financial hardship or other disadvantage;

(k) the advancement of animal welfare;

(l) any other purposes within subsection (4).

(3) In subsection (2)—

(a) in paragraph (c) "religion" includes—

(i) a religion which involves belief in more than one god, and

(ii) any analogous philosophical belief (whether or not involving belief in a god);

(b) in paragraph (d) "the advancement of health" includes the prevention or relief of sickness, disease or human suffering;

(c) paragraph (e) includes—

(i) rural or urban regeneration, and

(ii) the promotion of civic responsibility, volunteering, the voluntary sector or the effectiveness or efficiency of charities;

(d) in paragraph (g) "sport" means sports or games which promote health by involving physical or mental skill or exertion;

(e) paragraph (h) includes the advancement of peace and good community relations; and

(f) paragraph (j) includes relief given by the provision of accommodation or care to the persons mentioned in that paragraph.

(4) The purposes within this subsection (see subsection (2)(l)) are—

(a) any purposes not within paragraphs (a) to (k) of subsection (2) but recognised as charitable purposes under existing charity law or by virtue of section 1 of the Recreational Charities Act (Northern Ireland) 1958 (c. 16);

(b) any purposes that may reasonably be regarded as analogous to, or within the spirit of, any purposes falling within any of those paragraphs or paragraph (a) above; and

(c) any purposes that may reasonably be regarded as analogous to, or within the spirit of, any purposes which have been recognised under charity law as falling within paragraph (b) above or this paragraph.

(5) Where any of the terms used in any of paragraphs (a) to (k) of subsection (2), or in subsection (3), has a particular meaning under charity law, the term is to be taken as having the same meaning where it appears in that provision.

(6) Any reference in any statutory provision or document (in whatever terms)—

(a) to charitable purposes, or

(b) to institutions having purposes that are charitable under charity law,

is to be construed in accordance with subsection (1).

(7) Subsection (6)—

(a) applies whether the statutory provision or document was passed or made before or after the passing of this Act, but

(b) does not apply where the context otherwise requires.

(8) In this section—

"charity law" means the law relating to charities in Northern Ireland; and

"existing charity law" means charity law as in operation immediately before the day on which this section comes into operation.

The "public benefit" test

3.— (1) This section applies in connection with the requirement in section 2(1)(b) that a purpose falling within section 2(2) must be for the public benefit if it is to be a charitable purpose.

(2) In determining whether that requirement is satisfied in relation to any such purpose, it is not to be presumed that a purpose of a particular description is for the public benefit.

(3) In determining whether an institution provides or intends to provide public benefit, regard must be had to—

(a) how any—

(i) benefit gained or likely to be gained by members of the institution or any other persons (other than as members of the public), and

(ii) disbenefit incurred or likely to be incurred by the public,

in consequence of the institution exercising its functions compares with the benefit gained or likely to be gained by the public in that consequence, and

(b) where benefit is, or is likely to be, provided to a section of the public only, whether any condition on obtaining that benefit (including any charge or fee) is unduly restrictive.

Guidance as to operation of public benefit requirement

4.— (1) The Commission must issue guidance in pursuance of its public benefit objective.

(2) That objective is to promote awareness and understanding of the operation of the requirement mentioned in section 3(1) (see section 7(3) and (4)).

(3) The Commission may revise any guidance issued under this section.

(4) The Commission must carry out such public and other consultation as it considers appropriate—

(a) before issuing any guidance under this section, or

(b) (unless it considers that it is unnecessary to do so) before revising any such guidance.

(5) The Commission must publish any guidance issued or revised under this section in such manner as it considers appropriate.

(6) The charity trustees of a charity must have regard to any such guidance when exercising any powers or duties to which the guidance is relevant.

Special provisions about recreational charities, sports clubs, etc.

5.— (1) The Recreational Charities Act (Northern Ireland) 1958 (c. 16) is amended in accordance with subsection (2).

(2) In section 1 (certain recreational and similar purposes deemed to be charitable) for subsection (2) substitute—

"(2) The requirement in subsection (1) that the facilities are provided in the interests of social welfare cannot be satisfied if the basic conditions are not met.

(2A) The basic conditions are—

(a) that the facilities are provided with the object of improving the conditions of life for the persons for whom the facilities are primarily intended; and

(b) that either—

(i) those persons have need of the facilities by reason of their youth, age, infirmity or disability, poverty, or social and economic circumstances, or

(ii) the facilities are to be available to members of the public at large or to male, or to female, members of the public at large.".

(3) A registered sports club established for charitable purposes is to be treated as not being so established, and accordingly cannot be a charity.

(4) In subsection (3) a "registered sports club" means a club for the time being registered under Schedule 18 to the Finance Act 2002 (c. 23) (relief for community amateur sports club).

PART 2

THE CHARITY COMMISSION FOR NORTHERN IRELAND

Establishment of the Commission

The Charity Commission for Northern Ireland

6.— (1) There shall be a body corporate to be known as the Charity Commission for Northern Ireland (in this Act referred to as "the Commission").

(2) The Commission shall consist of a chair, a deputy chair and at least 3, but no more than 5, other members.

(3) The members shall be appointed by the Department.

(4) The Department shall exercise the power in subsection (3) so as to secure that—

(a) the knowledge and experience of the members of the Commission (taken together) includes knowledge and experience of the matters mentioned in subsection (5), and

(b) at least 1 member is legally qualified.

(5) The matters mentioned in this subsection are—

(a) the law relating to charities,

(b) charity accounts and the financing of charities, and

(c) the operation and regulation of charities of different sizes and descriptions.

(6) A person is not legally qualified for the purposes of subsection (4)(b) unless the person is a barrister or solicitor of not less than 7 years’ standing.

(7) Schedule 1 makes further provision with respect to the Commission.

(8) Subject to Schedule 1, section 19 of the Interpretation Act (Northern Ireland) 1954 (c. 33) applies to the Commission.

The Commission’s objectives, general functions, etc.

The Commission's objectives

7.— (1) The Commission has the objectives set out in subsection (2).

(2) The objectives are—

1. The public confidence objective.

2. The public benefit objective.

3. The compliance objective.

4. The charitable resources objective.

5. The accountability objective.

(3) Those objectives are defined as follows—

1. The public confidence objective is to increase public trust and confidence in charities.

2. The public benefit objective is to promote awareness and understanding of the operation of the public benefit requirement.

3. The compliance objective is to promote compliance by charity trustees with their legal obligations in exercising control and management of the administration of their charities.

4. The charitable resources objective is to promote the effective use of charitable resources.

5. The accountability objective is to enhance the accountability of charities to donors, beneficiaries and the general public.

(4) In this section "the public benefit requirement" means the requirement in subsection (1)(b) of section 2 that a purpose falling within subsection (2) of that section must be for the public benefit if it is to be a charitable purpose.

The Commission's general functions

8.— (1) The Commission has the general functions set out in subsection (2).

(2) The general functions are—

1. Determining whether institutions are or are not charities.

2. Encouraging and facilitating the better administration of charities.

3. Identifying and investigating apparent misconduct or mismanagement in the administration of charities and taking remedial or protective action in connection with misconduct or mismanagement therein.

4. Determining whether public collection certificates should be issued, and remain in force, in respect of public charitable collections.

5. Obtaining, evaluating and disseminating information in connection with the performance of any of the Commission’s functions or meeting any of its objectives.

6. Giving information or advice, or making proposals, to the Department on matters relating to any of the Commission’s functions or meeting any of its objectives.

(3) The Commission’s fifth general function includes (among other things) the establishment and maintenance of an accurate and up-to-date register of charities under section 16.

(4) The Commission’s sixth general function includes (among other things) complying, so far as is reasonably practicable, with any request made by the Department for information or advice on any matter relating to any of the Commission’s functions.

The Commission's general duties

9.— (1) The Commission has the general duties set out in subsection (2).

(2) The general duties are—

1. So far as is reasonably practicable the Commission must, in performing its functions, act in a way—

(a) which is compatible with its objectives, and

(b) which it considers most appropriate for the purpose of meeting those objectives.

2. So far as is reasonably practicable the Commission must, in performing its functions, act in a way which is compatible with the encouragement of—

(a) all forms of charitable giving, and

(b) voluntary participation in charity work.

3. In performing its functions the Commission must have regard to the need to use its resources in the most efficient, effective and economic way.

4. In performing its functions the Commission must, so far as relevant, have regard to the principles of best regulatory practice (including the principles under which regulatory activities should be proportionate, accountable, consistent, transparent and targeted only at cases in which action is needed).

5. In performing its functions the Commission must have regard to the desirability of facilitating innovation by or on behalf of charities.

6. In managing its affairs the Commission must have regard to such generally accepted principles of good corporate governance as it is reasonable to regard as applicable to it.

The Commission's incidental powers

10.— (1) The Commission has power to do anything which is calculated to facilitate, or is conducive or incidental to, the performance of any of its functions or general duties.

(2) However, nothing in this Act authorises the Commission—

(a) to exercise functions corresponding to those of a charity trustee in relation to a charity, or

(b) otherwise to be directly involved in the administration of a charity.

(3) Subsection (2) does not affect the operation of section 36 or 37 (power of Commission to give directions as to action to be taken or as to application of charity property).

The official custodian for charities in Northern Ireland

The official custodian for charities in Northern Ireland

11.— (1) There shall be an officer to be known as the official custodian for charities in Northern Ireland (in this Act referred to as "the official custodian") whose function it shall be to act as trustee for charities in the cases provided for by this Act; and the official custodian shall be by that name a corporation sole having perpetual succession and using an official seal which shall be officially and judicially noticed.

(2) Such individual as the Commission may designate shall be the official custodian.

(3) The duties of the official custodian shall be performed in accordance with such general or special directions as may be given by the Commission, and the expenses of the official custodian (except those re-imbursed, or recovered by, the official custodian as trustee for any charity) shall be defrayed by the Commission.

(4) Anything which is required to or may be done by, to or before the official custodian may be done by, to or before any member of staff of the Commission generally or specially authorised by it to act for the official custodian during a vacancy in the office of the official custodian or otherwise.

(5) The official custodian shall not be liable as trustee for any charity in respect of any loss or of the mis-application of any property unless it is occasioned by or through the wilful neglect or default of the official custodian or of any person acting for the official custodian; but the Commission shall be liable to make good to a charity any sums for which the official custodian may be liable by reason of any such neglect or default.

(6) The official custodian shall keep such books of account and such records in relation thereto as may be directed by the Department and shall prepare accounts in such form, in such manner and at such times as may be so directed.

(7) The accounts so prepared shall be examined, certified and reported on by the Comptroller and Auditor General.

(8) The Comptroller and Auditor General shall send to the Commission a copy of the accounts as certified in accordance with subsection (7), together with the report on them.

(9) The Commission shall publish and lay before the Assembly a copy of the documents sent to it under subsection (8).

PART 3

THE CHARITY TRIBUNAL FOR NORTHERN IRELAND

The Charity Tribunal for Northern Ireland

12.— (1) There shall be a tribunal to be known as the Charity Tribunal for Northern Ireland (in this Act referred to as "the Tribunal").

(2) Schedule 2 makes provision with respect to the constitution of the Tribunal and other matters relating to it.

(3) The Tribunal shall have jurisdiction to hear and determine—

(a) such appeals and applications as may be made to the Tribunal in accordance with Schedule 3, or any other statutory provision, in respect of decisions, orders or directions of the Commission, and

(b) such matters as may be referred to the Tribunal in accordance with Schedule 4 by the Commission or the Attorney General.

(4) Such appeals, applications and matters shall be heard and determined by the Tribunal in accordance with those Schedules, or any such statutory provision, taken with section 13 and rules made under that section.

Practice and procedure

13.— (1) The Lord Chancellor may make rules—

(a) regulating the exercise of rights to appeal or to apply to the Tribunal and matters relating to the making of references to it;

(b) about the practice and procedure to be followed in relation to proceedings before the Tribunal.

(2) Rules under subsection (1)(a) may, in particular, make provision—

(a) specifying steps which must be taken before appeals, applications or references are made to the Tribunal (and the period within which any such steps must be taken);

(b) specifying the period following the Commission’s final decision, direction or order within which such appeals or applications may be made;

(c) requiring the Commission to inform persons of their right to appeal or apply to the Tribunal following a final decision, direction or order of the Commission;

(d) specifying the manner in which appeals, applications or references to the Tribunal are to be made.

(3) Rules under subsection (1)(b) may, in particular, make provision—

(a) for the President or a legal member of the Tribunal (see paragraph 1(2)(b) of Schedule 2) to determine preliminary, interlocutory or ancillary matters;

(b) for matters to be determined without an oral hearing in specified circumstances;

(c) for the Tribunal to deal with urgent cases expeditiously;

(d) about the disclosure of documents;

(e) about evidence;

(f) about the admission of members of the public to proceedings;

(g) about the representation of parties to proceedings;

(h) about the withdrawal of appeals, applications or references;

(i) about the recording and promulgation of decisions;

(j) about the award of costs.

(4) Rules under subsection (1)(a) or (b) may confer a discretion on—

(a) the Tribunal,

(b) a member of the Tribunal, or

(c) any other person.

(5) The Tribunal may award costs only in accordance with subsections (6) and (7).

(6) If the Tribunal considers that any party to proceedings before it has acted vexatiously, frivolously or unreasonably, the Tribunal may order that party to pay to any other party to the proceedings the whole or part of the costs incurred by that other party in connection with the proceedings.

(7) If the Tribunal considers that a decision, direction or order of the Commission which is the subject of proceedings before it was unreasonable, the Tribunal may order the Commission to pay to any other party to the proceedings the whole or part of the costs incurred by that other party in connection with the proceedings.

(8) Rules of the Lord Chancellor under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament in like manner as a statutory instrument and section 5 of the Statutory Instruments Act 1946 (c. 36) shall apply accordingly.

(9) Rules of the Lord Chancellor under this section may make such supplemental, incidental, consequential or transitional provision or savings as the Lord Chancellor considers appropriate.

Appeal from Tribunal

14.— (1) A party to proceedings before the Tribunal may appeal to the Court against a decision of the Tribunal.

(2) Subject to subsection (3), an appeal may be brought under this section against a decision of the Tribunal only on a point of law.

(3) In the case of an appeal under this section against a decision of the Tribunal which determines a question referred to it by the Commission or the Attorney General, the Court—

(a) shall consider afresh the question referred to the Tribunal, and

(b) may take into account evidence which was not available to the Tribunal.

(4) An appeal under this section may be brought only with the permission of—

(a) the Tribunal, or

(b) if the Tribunal refuses permission, the Court.

(5) For the purposes of subsection (1)—

(a) the Commission and the Attorney General are to be treated as parties to all proceedings before the Tribunal, and

(b) rules under section 13(1) may include provision as to who else is to be treated as being (or not being) a party to proceedings before the Tribunal.

Intervention by Attorney General

15.— (1) This section applies to any proceedings—

(a) before the Tribunal, or

(b) on an appeal from the Tribunal,

to which the Attorney General is not a party.

(2) The Tribunal or, in the case of an appeal from the Tribunal, the Court may at any stage of the proceedings direct that all the necessary papers in the proceedings be sent to the Attorney General.

(3) A direction under subsection (2) may be made by the Tribunal or Court—

(a) of its own motion, or

(b) on the application of any party to the proceedings.

(4) The Attorney General may—

(a) intervene in the proceedings in such manner as the Attorney General thinks necessary or expedient, and

(b) argue before the Tribunal or Court any question in relation to the proceedings which the Tribunal or Court considers it necessary to have fully argued.

(5) Subsection (4) applies whether or not the Tribunal or Court has given a direction under subsection (2).

PART 4

REGISTRATION OF CHARITIES AND CHARITABLE NAMES

The register of charities

Register of charities

16.— (1) The Commission shall keep a register of charities.

(2) Every institution which is a charity under the law of Northern Ireland must be registered in the register of charities.

(3) The register shall be kept by the Commission in such manner as it thinks fit.

(4) The register shall contain—

(a) the name of the charity, and

(b) such other particulars of, and such other information relating to, the charity as the Commission thinks fit.

(5) The Commission shall remove from the register—

(a) any institution which it no longer considers to be a charity, and

(b) any charity which has ceased to exist or does not operate.

(6) If the removal of an institution under subsection (5)(a) is due to any change in its trusts, the removal shall take effect from the date of that change.

(7) The register (including the entries cancelled when institutions are removed from the register) shall be open to public inspection at all reasonable times.

(8) Where any information contained in the register is not in documentary form, subsection (7) shall be construed as requiring the information to be available for public inspection in legible form at all reasonable times.

(9) If the Commission so determines, subsection (7) shall not apply to any particular information contained in the register that is specified in the determination.

(10) Copies (or particulars) of the trusts of any registered charity as supplied to the Commission under section 17 shall, so long as the charity remains on the register—

(a) be kept by the Commission, and

(b) be open to public inspection at all reasonable times.

Duties of trustees in connection with registration

17.— (1) Where a charity required to be registered by virtue of section 16(2) is not registered, it is the duty of the charity trustees—

(a) to apply to the Commission for the charity to be registered, and

(b) to supply the Commission with the required documents and information.

(2) The "required documents and information" are—

(a) copies of the charity’s trusts or (if they are not set out in any extant document) particulars of them,

(b) such other documents or information as may be prescribed by regulations made by the Department, and

(c) such other documents or information as the Commission may require for the purposes of the application.

(3) Where an institution is for the time being registered, it is the duty of the charity trustees (or the last charity trustees)—

(a) to notify the Commission if the institution ceases to exist, or if there is any change in its trusts or in the particulars of it entered in the register, and

(b) (so far as appropriate), to supply the Commission with particulars of any such change and copies of any new trusts or alterations of the trusts.

(4) Nothing in subsection (3) requires a person—

(a) to supply the Commission with copies of schemes for the administration of a charity made otherwise than by the Court,

(b) to notify the Commission of any change made with respect to a registered charity by such a scheme, or

(c) if the person refers the Commission to a document or copy already in the possession of the Commission, to supply a further copy of the document.

(5) Where a copy of a document relating to a registered charity—

(a) is not required to be supplied to the Commission as the result of subsection (4), but

(b) is in the possession of the Commission,

a copy of the document shall be open to inspection under section 16(10) as if supplied to the Commission under this section.

Effect of, and claims and objections to, registration

18.— (1) An institution shall for all purposes other than rectification of the register be conclusively presumed to be or to have been a charity at any time when it is or was on the register of charities.

(2) Any person who is or may be affected by the registration of an institution as a charity may, on the ground that it is not a charity, object to its being entered by the Commission in the register, or apply to the Commission for it to be removed from the register; and the Department may by regulations make provision as to the manner in which any such objection or application is to be made, prosecuted or dealt with.

(3) If there is an appeal to the Tribunal against any decision of the Commission to enter an institution in the register, or not to remove an institution from the register, then until the Commission is satisfied whether the decision of the Commission is or is not to stand, the entry in the register shall be maintained, but shall be in suspense and marked to indicate that it is in suspense.

(4) For the purposes of subsection (1) an institution shall be deemed not to be on the register during any period when the entry relating to it is in suspense under subsection (3).

(5) Any question affecting the registration or removal from the register of an institution may, notwithstanding that it has been determined by a decision on appeal under Schedule 3, be considered afresh by the Commission and shall not be concluded by that decision, if it appears to the Commission that there has been a change of circumstances or that the decision is inconsistent with a later judicial decision.

Status of registered charity to appear on official publications, etc.

19.— (1) The fact that a charity is registered shall be stated in legible characters—

(a) in all notices, advertisements and other documents issued by or on behalf of the charity and soliciting money or other property for the benefit of the charity;

(b) in all bills of exchange, promissory notes, endorsements, cheques and orders for money or goods purporting to be signed on behalf of the charity; and

(c) in all bills rendered by it and in all its invoices, receipts and letters of credit.

(2) Subsection (1)(a) has effect whether the solicitation is express or implied, and whether the money or other property is to be given for any consideration or not.

(3) Any person who issues or authorises the issue of any document falling within paragraph (a) or (c) of subsection (1) which does not contain the statement required by that subsection, is guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(4) Any person who signs any document falling within paragraph (b) of subsection (1) which does not contain the statement required by that subsection, is guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Charity names

Power of Commission to require charity's name to be changed

20.— (1) Where this subsection applies to a charity, the Commission may give a direction requiring the name of the charity to be changed, within such period as is specified in the direction, to such other name as the charity trustees may determine with the approval of the Commission.

(2) Subsection (1) applies to a charity if—

(a) it is a registered charity and its name ("the registered name")—

(i) is the same as, or

(ii) is in the opinion of the Commission too like,

the name, at the time when the registered name was entered in the register in respect of the charity, of any other charity (whether registered or not);

(b) the name of the charity is in the opinion of the Commission likely to mislead the public as to the true nature—

(i) of the purposes of the charity as set out in its trusts, or

(ii) of the activities which the charity carries on under its trusts in pursuit of those purposes;

(c) the name of the charity includes any word or expression for the time being specified in regulations made by the Department and the inclusion in its name of that word or expression is in the opinion of the Commission likely to mislead the public in any respect as to the status of the charity;

(d) the name of the charity is in the opinion of the Commission likely to give the impression that the charity is connected in some way with a government department or any district council, or with any other body of persons or any individual, when it is not so connected; or

(e) the name of the charity is in the opinion of the Commission offensive;

and in this subsection any reference to the name of a charity is, in relation to a registered charity, a reference to the name by which it is registered.

(3) Any direction given by virtue of subsection (2)(a) must be given within 12 months of the time when the registered name was entered in the register in respect of the charity.

(4) Any direction given under this section with respect to a charity shall be given to the charity trustees; and on receiving any such direction the charity trustees shall give effect to it notwithstanding anything in the trusts of the charity.

(5) Where the name of any charity is changed under this section, then (without prejudice to section 17(3)) it shall be the duty of the charity trustees forthwith to notify the Commission of the charity’s new name and of the date on which the change occurred.

(6) A change of name by a charity under this section does not affect any rights or obligations of the charity; and any legal proceedings that might have been continued or commenced by or against it in its former name may be continued or commenced by or against it in its new name.

(7) Article 36(3) of the Companies (Northern Ireland) Order 1986 (NI 6) (minor variations in names to be disregarded) shall apply for the purposes of this section as if the reference to Article 36(1)(c) of that Order were a reference to subsection (2)(a) above.

(8) Any reference in this section to the charity trustees of a charity shall, in relation to a charity which is a company, be read as a reference to the directors of the company.

Effect of direction under section 20 where charity is a company

21.— (1) Where any direction is given under section 20 with respect to a charity which is a company, the direction shall be taken to require the name of the charity to be changed by resolution of the directors of the company.

(2) Where a resolution of the directors is passed in accordance with subsection (1), the company must give notice of the change to the registrar of companies.

(3) Where the name of such a charity is changed in compliance with any such direction, the registrar of companies—

(a) shall, subject to Article 36 of the Companies (Northern Ireland) Order 1986 (NI 6) (prohibition on registration of certain names), enter the new name on the register of companies in place of the former name, and

(b) shall issue a certificate of incorporation altered to meet the circumstances of the case;

and the change of name has effect from the date on which the altered certificate is issued.

PART 5

INFORMATION POWERS

General power to institute inquiries

22.— (1) The Commission may institute inquiries with regard to charities or a particular charity or class of charities, either generally or for particular purposes.

(2) The Commission may either conduct such an inquiry or appoint a person to conduct it and make a report to the Commission.

(3) For the purposes of any such inquiry the Commission, or a person appointed by the Commission to conduct it, may (subject to the provisions of this section) direct any person (P)—

(a) to furnish accounts and statements in writing with respect to any matter in question at the inquiry, being a matter on which P has or can reasonably obtain information, or to return answers in writing to any questions or inquiries addressed to P on any such matter, and to verify any such accounts, statements or answers by statutory declaration;

(b) to furnish copies of documents in P’s custody or under P’s control which relate to any matter in question at the inquiry, and to verify any such copies by statutory declaration;

(c) to attend at a specified time and place and give evidence or produce any such documents.

(4) For the purposes of any such inquiry evidence may be taken on oath, and the person conducting the inquiry may for that purpose administer oaths, or may instead of administering an oath require P to make and subscribe a declaration of the truth of the matters about which P is examined.

(5) The Commission may pay to P the necessary expenses of attending to give evidence or produce documents for the purpose of an inquiry under this section, and P shall not be required in obedience to a direction under paragraph (c) of subsection (3) to go more than 10 miles from P’s place of residence unless those expenses are paid or tendered to P.

(6) Where an inquiry has been held under this section, the Commission may either—

(a) cause the report of the person conducting the inquiry, or such other statement of the results of the inquiry as the Commission thinks fit, to be printed and published, or

(b) publish any such report or statement in some other way which is calculated in the Commission’s opinion to bring it to the attention of persons who may wish to make representations to the Commission about the action to be taken.

Power to call for documents and search records

23.— (1) The Commission may by order—

(a) require any person who has possession of any information which relates to any charity and is relevant to the discharge of the Commission’s functions or of the functions of the official custodian to furnish that information to the Commission;

(b) require any person who has custody or control of any document which relates to any charity and is relevant to the discharge of the Commission’s functions or of the functions of the official custodian—

(i) to furnish the Commission with a copy of or extract from the document, or

(ii) (unless the document forms part of the records or other documents of a court or of a public or local authority) to transmit the document itself to the Commission for its inspection.

(2) Any member of staff of the Commission, if so authorised by it, shall be entitled without payment to inspect and take copies of or extracts from the records or other documents of any court, or of any public registry or office of records, for any purpose connected with the discharge of the functions of the Commission or of the official custodian.

(3) The Commission shall be entitled without payment to keep any copy or extract furnished to it under subsection (1), and where a document transmitted to the Commission under that subsection for it to inspect relates only to one or more charities and is not held by any person entitled as trustee or otherwise to the custody of it, the Commission may keep it or may deliver it to the charity trustees or to any other person who may be so entitled.

(4) The rights conferred by subsection (2) shall, in relation to information recorded otherwise than in legible form, include the right to require the information to be made available in legible form for inspection or for a copy or extract to be made of or from it.

(5) In subsection (2) the reference to a member of the staff of the Commission includes the official custodian even if the official custodian is not a member of the staff of the Commission.

Disclosure of information by and to the Commission

24.— (1) The Commission may disclose any information to any public body or office-holder (in Northern Ireland, in any other part of the United Kingdom or in a country or territory outside the United Kingdom)—

(a) for any purpose connected with the exercise of the Commission’s functions, or

(b) for the purpose of enabling or assisting the public body or office-holder to exercise any functions.

(2) Any person to whom this subsection applies may disclose any information to the Commission for the purpose of enabling or assisting it to exercise any functions.

(3) Subsection (2) applies to—

(a) any Northern Ireland authority,

(b) the Northern Ireland Assembly Commission,

(c) any district council,

(d) any constable, and

(e) any other public authority whose functions are exercisable only or mainly in or as regards Northern Ireland and relate only or mainly to transferred matters.

(4) In subsection (3)(a) "Northern Ireland authority" means the First Minister, the deputy First Minister, a Northern Ireland Minister or a Northern Ireland department.

(5) A power to disclose information under subsection (1) or (2) is subject to any express restriction imposed by or under any other statutory provision.

(6) Where any information disclosed to the Commission under or for the purposes of any statutory provision is so disclosed subject to any express restriction on the disclosure of the information by the Commission, the Commission’s power of disclosure under subsection (1) shall, in relation to the information, be exercisable subject to any such restriction.

Supply of false or misleading information to Commission, etc.

25.— (1) Any person who knowingly or recklessly provides the Commission with information which is false or misleading in a material particular is guilty of an offence if the information—

(a) is provided in purported compliance with a requirement imposed by or under this Act; or

(b) is provided otherwise than as mentioned in paragraph (a) but in circumstances in which the person providing the information intends, or could reasonably be expected to know, that it would be used by the Commission for the purpose of discharging its functions under this Act.

(2) Any person who wilfully alters, suppresses, conceals or destroys any document which that person is or is liable to be required, by or under this Act, to produce to the Commission is guilty of an offence.

(3) Any person guilty of an offence under this section is liable—

(a) on summary conviction, to a fine not exceeding the statutory maximum;

(b) on conviction on indictment, to imprisonment for a term not exceeding 2 years or to a fine, or both.

(4) In this section references to the Commission include references to any person conducting an inquiry under section 22.

PART 6

APPLICATION OF PROPERTY CY-PRÈS AND ASSISTANCE AND SUPERVISION OF CHARITIES BY COURT AND COMMISSION

Extended powers of Court and variation of charters

Occasions for applying property cy-près

26.— (1) Subject to subsection (3), the circumstances in which the original purposes of a charitable gift can be altered to allow the property given or part of it to be applied cy-près shall be as follows—

(a) where the original purposes, in whole or in part—

(i) have been as far as may be fulfilled; or

(ii) cannot be carried out, or not according to the directions given and to the spirit of the gift; or

(b) where the original purposes provide a use for part only of the property available by virtue of the gift; or

(c) where the property available by virtue of the gift and other property applicable for similar purposes can be more effectively used in conjunction, and to that end can suitably, regard being had to the appropriate considerations, be made applicable to common purposes; or

(d) where the original purposes were laid down by reference to an area which then was but has since ceased to be a unit for some other purpose, or by reference to a class of persons or to an area which has for any reason since ceased to be suitable, regard being had to the appropriate considerations, or to be practical in administering the gift; or

(e) where the original purposes, in whole or in part, have, since they were laid down,—

(i) been adequately provided for by other means; or

(ii) ceased, as being useless or harmful to the community or for other reasons, to be in law charitable; or

(iii) ceased in any other way to provide a suitable and effective method of using the property available by virtue of the gift, regard being had to the appropriate considerations.

(2) In subsection (1) "the appropriate considerations" means—

(a) (on the one hand) the spirit of the gift concerned, and

(b) (on the other) the social and economic circumstances prevailing at the time of the proposed alteration of the original purposes.

(3) Subsection (1) shall not affect the conditions which must be satisfied in order that property given for charitable purposes may be applied cy-près except in so far as those conditions require a failure of the original purposes.

(4) In authorising property comprised in a charitable gift to be applied cy-près, the Court or the Commission shall have power to alter—

(a) the purposes for which the property given may be applied; and

(b) the provisions and conditions governing the application of the property for those purposes;

so as to secure that the property is applied as beneficially as is possible, consistently with the spirit of the gift.

(5) In ascertaining the spirit of a gift for the purpose of subsection (1)(a)(ii) or (4) the Court or the Commission may take into account the conduct, and any habits or actions, of the donor and any written or oral declarations made by the donor at any time in relation to the gift.

(6) References in the foregoing subsections to the original purposes of a gift shall be construed, 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.

(7) It is hereby declared that a trust for charitable purposes places a trustee under a duty, where the case permits and requires the property or some part of it to be applied cy-près, to secure its effective use for charity by taking steps to enable it to be so applied.

Application cy-près of gifts of donors unknown or disclaiming

27.— (1) Property given for specific charitable purposes which fail shall be applicable cy-près as if given for charitable purposes generally, where it belongs—

(a) to a donor who after—

(i) the prescribed advertisements and inquiries have been published and made, and

(ii) the prescribed period beginning with the publication of those advertisements has expired,

cannot be identified or cannot be found; or

(b) to a donor who has executed a disclaimer in the prescribed form of the donor’s right to have the property returned.

(2) Where the prescribed advertisements and inquiries have been published and made by or on behalf of trustees with respect to any such property, the trustees shall not be liable to any person in respect of the property if no claim by that person to be interested in it is received by them before the expiry of the period mentioned in subsection (1)(a)(ii).

(3) For the purposes of this section property shall be conclusively presumed (without any advertisement or inquiry) to belong to donors who cannot be identified, in so far as it consists—

(a) of the proceeds of cash collections made by means of collecting boxes or by other means not adapted for distinguishing one gift from another; or

(b) of the proceeds of any lottery, competition, entertainment, sale or similar money-raising activity, after allowing for property given to provide prizes or articles for sale or otherwise to enable the activity to be undertaken.

(4) The Court or the Commission may by order direct that property not falling within subsection (3) shall for the purposes of this section be treated (without any advertisement or inquiry) as belonging to donors who cannot be identified where it appears to the Court or the Commission either—

(a) that it would be unreasonable, having regard to the amounts likely to be returned to the donors, to incur expense with a view to returning the property; or

(b) that it would be unreasonable, having regard to the nature, circumstances and amounts of the gifts, and to the lapse of time since the gifts were made, for the donors to expect the property to be returned.

(5) Where property is applied cy-près by virtue of this section, the donor shall be deemed to have parted with all of the donor’s interest at the time when the gift was made; but where property is so applied as belonging to donors who cannot be identified or cannot be found, and is not so applied by virtue of subsection (3) or (4)—

(a) the scheme shall specify the total amount of that property; and

(b) the donor of any part of that amount shall be entitled, if the donor makes a claim not later than 6 months after the date on which the scheme is made, to recover from the charity for which the property is applied a sum equal to that part, less any expenses properly incurred by the charity trustees after that date in connection with claims relating to the donor’s gift; and

(c) the scheme may include directions as to the provision to be made for meeting any such claim.

(6) Where—

(a) any sum is, in accordance with any such directions, set aside for meeting any such claims, but

(b) the aggregate amount of any such claims actually made exceeds the relevant amount,

then, if the Commission so directs, each of the donors in question shall be entitled only to such proportion of the relevant amount as the amount of that donor’s claim bears to the aggregate amount referred to in paragraph (b); and for this purpose "the relevant amount" means the amount of the sum so set aside after deduction of any expenses properly incurred by the charity trustees in connection with claims relating to the donors’ gifts.

(7) For the purposes of this section, charitable purposes shall be deemed to "fail" where any difficulty in applying property to those purposes makes that property or the part not applicable cy-près available to be returned to the donors.

(8) In this section "prescribed" means prescribed by regulations made by the Commission; and such regulations may, as respects the advertisements which are to be published for the purposes of subsection (1)(a), make provision as to the form and content of such advertisements as well as the manner in which they are to be published.

(9) In this section, except in so far as the context otherwise requires, references to a donor include persons claiming through or under the original donor, and references to property given include the property for the time being representing the property originally given or property derived from it.

(10) This section shall apply to property given for charitable purposes, notwithstanding that it was so given before the commencement of this section.

Application cy-près of gifts made in response to certain solicitations

28.— (1) This section applies to property given—

(a) for specific charitable purposes, and

(b) in response to a solicitation within subsection (2).

(2) A solicitation is within this subsection if—

(a) it is made for specific charitable purposes, and

(b) it is accompanied by a statement to the effect that property given in response to it will, in the event of those purposes failing, be applicable cy-près as if given for charitable purposes generally, unless the donor makes a relevant declaration at the time of making the gift.

(3) A "relevant declaration" is a declaration in writing by the donor to the effect that, in the event of the specific charitable purposes failing, the donor wishes the trustees holding the property to give the donor the opportunity to request the return of the property in question (or a sum equal to its value at the time of the making of the gift).

(4) Subsections (5) and (6) apply if—

(a) a person has given property as mentioned in subsection (1),

(b) the specific charitable purposes fail, and

(c) the donor has made a relevant declaration.

(5) The trustees holding the property must take the prescribed steps for the purpose of—

(a) informing the donor of the failure of the purposes,

(b) enquiring whether the donor wishes to request the return of the property (or a sum equal to its value), and

(c) if within the prescribed period the donor makes such a request, returning the property (or such a sum).

(6) If those trustees have taken all appropriate prescribed steps but—

(a) they have failed to find the donor, or

(b) the donor does not within the prescribed period request the return of the property (or a sum equal to its value),

section 27(1) shall apply to the property as if it belonged to a donor within paragraph (b) of that subsection (application of property where donor has disclaimed right to return of property).

(7) If—

(a) a person has given property as mentioned in subsection (1),

(b) the specific charitable purposes fail, and

(c) the donor has not made a relevant declaration,

section 27(1) shall similarly apply to the property as if it belonged to a donor within sub-paragraph (b) of that subsection.

(8) For the purposes of this section—

(a) "solicitation" means a solicitation made in any manner and however communicated to the persons to whom it is addressed,

(b) it is irrelevant whether any consideration is or is to be given in return for the property in question, and

(c) where any appeal consists of both solicitations that are accompanied by statements within subsection (2)(b) and solicitations that are not so accompanied, a person giving property as a result of the appeal is to be taken to have responded to the former solicitations and not the latter, unless the person proves otherwise.

(9) In this section "prescribed" means prescribed by regulations made by the Commission.

(10) Subsections (7) and (9) of section 27 shall apply for the purposes of this section as they apply for the purposes of section 27.

Cy-près schemes

29.— (1) The power of the Court or the Commission to make schemes for the application of property cy-près shall be exercised in accordance with this section.

(2) Where any property given for charitable purposes is applicable cy-près, the Court or the Commission may make a scheme providing for the property to be applied—

(a) for such charitable purposes, and

(b) (if the scheme provides for the property to be transferred to another charity) by or on trust for such other charity,

as it considers appropriate, having regard to the matters set out in subsection (3).

(3) The matters are—

(a) the spirit of the original gift,

(b) the desirability of securing that the property is applied for charitable purposes which are close to the original purposes, and

(c) the need for the relevant charity to have purposes which are suitable and effective in the light of current social and economic circumstances.

The "relevant charity" means the charity by or on behalf of which the property is to be applied under the scheme.

(4) If a scheme provides for the property to be transferred to another charity, the scheme may impose on the charity trustees of that charity a duty to secure that the property is applied for purposes which are, so far as is reasonably practicable, similar in character to the original purposes.

(5) In this section references to property given include the property for the time being representing the property originally given or property derived from it.

(6) In this section references to the transfer of property to a charity are references to its transfer—

(a) to the charity, or

(b) to the charity trustees, or

(c) to any trustee for the charity, or

(d) to a person nominated by the charity trustees to hold it in trust for the charity,

as the scheme may provide.

Charities governed by charter

30. Where a Royal charter establishing or regulating a body corporate is amendable by the grant and acceptance of a further charter, a scheme relating to the body corporate or to the administration of property held by the body (including a scheme for the cy-près application of any such property) may be made by the Court under the Court’s jurisdiction with respect to charities notwithstanding that the scheme cannot take effect without the alteration of the charter, but shall be so framed that the scheme, or such part of it as cannot take effect without the alteration of the charter, does not purport to come into operation unless or until Her Majesty thinks fit to amend the charter in such manner as will permit the scheme or that part of it to have effect.

Powers of Commission to make schemes and act for protection of charities, etc.

Concurrent jurisdiction with High Court for certain purposes

31.— (1) Subject to the provisions of this Act, the Commission may by order exercise the same jurisdiction and powers as are exercisable by the High Court in charity proceedings for the following purposes—

(a) establishing a scheme for the administration of a charity;

(b) appointing, discharging or removing a charity trustee or trustee for a charity, or removing an officer or employee;

(c) vesting or transferring property, or requiring or entitling any person to call for or make any transfer of property or any payment.

(2) Where the Court directs a scheme for the administration of a charity to be established, the Court may by order refer the matter to the Commission for it to prepare or settle a scheme in accordance with such directions (if any) as the Court sees fit to give, and any such order may provide for the scheme to be put into effect by order of the Commission as if prepared under subsection (1) and without any further order of the Court.

(3) The Commission shall not have jurisdiction under this section to try or determine the title at law or in equity to any property as between a charity or trustee for a charity and a person holding or claiming the property or an interest in it adversely to the charity, or to try or determine any question as to the existence or extent of any charge or trust.

(4) Subject to the following subsections, the Commission shall not exercise its jurisdiction under this section as respects any charity, except—

(a) on the application of the charity; or

(b) on an order of the Court under subsection (2); or

(c) on the application of the Attorney General.

(5) In the case of a charity whose gross income does not in aggregate exceed £500 a year, the Commission may exercise its jurisdiction under this section on the application—

(a) of any one or more of the charity trustees; or

(b) of any person interested in the charity.

(6) Where, in the case of a charity, the Commission is satisfied that the charity trustees ought in the interests of the charity to apply for a scheme, but have unreasonably refused or neglected to do so and the Commission has given the charity trustees an opportunity to make representations to it, the Commission may proceed as if an application for a scheme had been made by the charity but the Commission shall not have power in a case where it acts by virtue of this subsection to alter the purposes of a charity, unless 40 years have elapsed from the date of its foundation.

(7) Where—

(a) a charity cannot apply to the Commission for a scheme by reason of any vacancy among the charity trustees or the absence or incapacity of any of them, but

(b) such an application is made by such number of the charity trustees as the Commission considers appropriate in the circumstances of the case,

the Commission may nevertheless proceed as if the application were an application made by the charity.

(8) The Commission may on the application of any charity trustee or trustee for a charity exercise its jurisdiction under this section for the purpose of discharging that person from trusteeship.

(9) Before exercising any jurisdiction under this section otherwise than on an order of the Court, the Commission shall give notice of its intention to do so to each of the charity trustees, except any that cannot be found or has no known address or who is party or privy to an application for the exercise of the jurisdiction; and any such notice may be given by post and, if given by post, may be addressed to the recipient’s last known address.

(10) The Commission shall not exercise its jurisdiction under this section in any case (not referred to the Commission by order of the Court) which, by reason of its contentious character, or of any special question of law or of fact which it may involve, or for other reasons, the Commission may consider more fit to be adjudicated on by the Court.

(11) If the Department thinks it expedient to do so—

(a) in consequence of changes in the value of money, or

(b) with a view to increasing the number of charities in respect of which the Commission may exercise its jurisdiction under this section in accordance with subsection (5),

it may by order amend that subsection by substituting a different sum for the sum for the time being specified there.

Further powers to make schemes or alter application of charitable property

32.— (1) Where it appears to the Commission that a scheme should be established for the administration of a charity, but also that it is necessary or desirable for the scheme to alter the provision made by an Act of the Parliament of the United Kingdom or Northern Ireland legislation establishing or regulating the charity or to make any other provision which goes or might go beyond the powers exercisable by the Commission apart from this section, or that it is for any reason proper for the scheme to be subject to review by the Assembly, then (subject to subsection (6)) the Commission may settle a scheme accordingly with a view to its being given effect under this section.

(2) A scheme settled by the Commission under this section may be given effect by order of the Department, and a draft of the order shall be laid before the Assembly.

(3) In the case of a scheme which goes beyond the powers exercisable apart from this section in altering a statutory provision contained in or having effect under any public general Act of Parliament of the United Kingdom or Northern Ireland legislation, the order shall not be made unless the draft has been approved by resolution of the Assembly.

(4) Subject to subsection (5), any provision of a scheme brought into effect under this section may be modified or superseded by the Court or the Commission as if it were a scheme brought into effect by order of the Commission under section 31.

(5) Where subsection (3) applies to a scheme, the order giving effect to it may direct that the scheme shall not be modified or superseded by a scheme brought into effect otherwise than under this section, and may also direct that that subsection shall apply to any scheme modifying or superseding the scheme to which the order gives effect.

(6) The Commission shall not proceed under this section without the like application and the like notice to the charity trustees, as would be required if it was proceeding (without an order of the Court) under section 31; but on any application for a scheme, or in a case where it acts by virtue of subsection (6) or (7) of that section, the Commission may proceed under this section or that section as appears to it appropriate.

(7) Notwithstanding anything in the trusts of a charity, no expenditure incurred in preparing or promoting a Bill in the Parliament of the United Kingdom or a Bill of the Assembly shall without the consent of the Court or the Commission be defrayed out of any moneys applicable for the purposes of a charity.

(8) Where the Commission is satisfied—

(a) that the whole of the income of a charity cannot in existing circumstances be effectively applied for the purposes of the charity; and

(b) that, if those circumstances continue, a scheme might be made for applying the surplus cy-près; and

(c) that it is for any reason not yet desirable to make such a scheme;

then the Commission may by order authorise the charity trustees at their discretion (but subject to any conditions imposed by the order) to apply any accrued or accruing income for any purposes for which it might be made applicable by such a scheme, and any application authorised by the order shall be deemed to be within the purposes of the charity.

(9) An order under subsection (8) shall not extend to more than £300 out of income accrued before the date of the order, not to income accruing more than 3 years after that date, nor to more than £100 out of the income accruing in any of those 3 years.

(10) In this section "Northern Ireland legislation" has the meaning given in section 24(5) of the Interpretation Act 1978 (c. 30).

Power to act for protection of charities

33.— (1) Where, at any time after it has instituted an inquiry under section 22 with respect to any charity, the Commission is satisfied—

(a) that there is or has been any misconduct or mismanagement in the administration of the charity; or

(b) that it is necessary or desirable to act for the purpose of protecting the property of the charity or securing a proper application for the purposes of the charity of that property or of property coming to the charity,

the Commission may of its own motion do one or more of the following things—

(i) by order suspend any person who is a trustee, charity trustee, officer, agent or employee of the charity from the exercise of that person’s office or employment pending consideration being given to that person’s removal (whether under this section or otherwise);

(ii) by order appoint such number of additional charity trustees as it considers necessary for the proper administration of the charity;

(iii) by order vest any property held by or in trust for the charity in the official custodian, or require the persons in whom any such property is vested to transfer it to the official custodian, or appoint any person to transfer any such property to the official custodian;

(iv) order any person who holds any property on behalf of the charity, or of any trustee for it, not to part with the property without the approval of the Commission;

(v) order any debtor of the charity not to make any payment in or towards the discharge of liability to the charity without the approval of the Commission;

(vi) by order restrict (notwithstanding anything in the trusts of the charity) the transactions which may be entered into, or the nature or amount of the payments which may be made, in the administration of the charity without the approval of the Commission;

(vii) by order appoint (in accordance with section 35) an interim manager, who shall act as receiver and manager in respect of the property and affairs of the charity.

(2) Where, at any time after it has instituted an inquiry under section 22 with respect to any charity, the Commission is satisfied—

(a) that there is or has been any misconduct or mismanagement in the administration of the charity; and

(b) that it is necessary or desirable to act for the purpose of protecting the property of the charity or securing a proper application for the purposes of the charity of that property or of property coming to the charity,

the Commission may of its own motion do either or both of the following things—

(i) by order remove any trustee, charity trustee, officer, agent or employee of the charity who has been responsible for or privy to the misconduct or mismanagement or whose conduct has contributed to it or facilitated it;

(ii) by order establish a scheme for the administration of the charity.

(3) The references in subsections (1) or (2) to misconduct or mismanagement shall (notwithstanding anything in the trusts of the charity) extend to the employment for the remuneration or reward of persons acting in the affairs of the charity, or for other administrative purposes, of sums which are excessive in relation to the property which is or is likely to be applied or applicable for the purposes of the charity.

(4) The Commission may also remove a charity trustee by order made of its own motion—

(a) where, within the last 5 years, the trustee—

(i) having previously been adjudged bankrupt or had estate sequestrated, has been discharged, or

(ii) having previously made a composition or arrangement with, or granted a trust deed for, creditors, has been discharged in respect of it;

(b) where the trustee is a corporation in liquidation;

(c) where the trustee is incapable of acting by reason of mental disorder within the meaning of the Mental Health (Northern Ireland) Order 1986 (NI 4);

(d) where the trustee has not acted, and will not declare willingness or unwillingness to act;

(e) where the trustee is outside Northern Ireland or cannot be found or does not act, and that absence or failure to act impedes the proper administration of the charity.

(5) The Commission may by order made of its own motion appoint a person to be a charity trustee—

(a) in place of a charity trustee removed by the Commission under this section or otherwise;

(b) where there are no charity trustees, or where by reason of vacancies in their number or the absence or incapacity of any of their number the charity cannot apply for the appointment;

(c) where there is a single charity trustee, not being a corporation aggregate, and the Commission is of opinion that it is necessary to increase the number for the proper administration of the charity;

(d) where the Commission is of opinion that it is necessary for the proper administration of the charity to have an additional charity trustee because one of the existing charity trustees who ought nevertheless to remain a charity trustee either cannot be found or does not act or is outside Northern Ireland.

(6) The powers of the Commission under this section to remove or appoint charity trustees of its own motion shall include power to make any such order with respect to the vesting in or transfer to the charity trustees of any property as the Commission could make on the removal or appointment of a charity trustee by it under section 31.

(7) Any order under this section for the removal or appointment of a charity trustee or trustee for a charity, or for the vesting or transfer of any property, shall be of the like effect as an order made under section 31.

(8) The power of the Commission to make an order under subsection (1)(i) shall not be exercisable so as to suspend any person (P) from the exercise of office or employment for a period of more than 12 months; but (without prejudice to the generality of section 175(1)), any such order made in the case of P may make provision as respects the period of P’s suspension for matters arising out of it, and in particular for enabling any person to execute any instrument in P’s name or otherwise act for P and, in the case of a charity trustee, for adjusting any rules governing the proceedings of the charity trustees to take account of the reduction in the number capable of acting.

(9) Before exercising any jurisdiction under this section otherwise than by virtue of subsection (1), the Commission shall give notice of its intention to do so to each of the charity trustees, except any that cannot be found or has no known address; and any such notice may be given by post and, if given by post, may be addressed to the recipient’s last known address.

(10) The Commission shall, at such intervals as it thinks fit, review any order made by it under paragraph (i), or any of paragraphs (iii) to (vii), of subsection (1); and, if on any such review it appears to the Commission that it would be appropriate to discharge the order in whole or in part, the Commission shall so discharge it (whether subject to any savings or other transitional provisions or not).

(11) Any person who contravenes an order under subsection (1)(iv), (v) or (vi), is guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(12) Subsection (11) shall not be taken to preclude the bringing of proceedings for breach of trust against any charity trustee or trustee for a charity in respect of a contravention of an order under subsection (1)(iv) or (vi) (whether proceedings in respect of the contravention are brought against that person under subsection (11) or not).

Power to suspend or remove trustees, etc. from membership of charity

34.— (1) This section applies where the Commission makes—

(a) an order under section 33(1) suspending from office or employment any trustee, charity trustee, officer, agent or employee of a charity, or

(b) an order under section 33(2) removing from office or employment any officer, agent or employee of a charity,

and the trustee, charity trustee, officer, agent or employee (as the case may be) is a member of the charity.

(2) If the order suspends the person in question from office or employment, the Commission may also make an order suspending that person’s membership of the charity for the period for which that person is suspended from office or employment.

(3) If the order removes the person in question from office or employment, the Commission may also make an order—

(a) terminating that person’s membership of the charity, and

(b) prohibiting that person from resuming membership of the charity without the Commission’s consent.

(4) If an application for the Commission’s consent under subsection (3)(b) is made 5 years or more after the order was made, the Commission must grant the application unless satisfied that, by reason of any special circumstances, it should be refused.

Supplementary provisions relating to interim manager appointed for a charity

35.— (1) The Commission may under section 33(1)(vii) appoint to be interim manager in respect of a charity such person as it thinks fit.

(2) Without prejudice to the generality of section 175(1),any order made by the Commission under section 33(1)(vii) may make provision with respect to the functions to be discharged by the interim manager appointed by the order; and those functions shall be discharged by the interim manager under the supervision of the Commission.

(3) In connection with the discharge of those functions any such order may provide—

(a) for the interim manager appointed by the order to have such powers and duties of the charity trustees of the charity concerned (whether arising under this Act or otherwise) as are specified in the order;

(b) for any powers or duties exercisable or falling to be performed by the interim manager by virtue of paragraph (a) to be exercisable or performed by the interim manager to the exclusion of those trustees.

(4) Where a person has been appointed interim manager by any such order—

(a) section 49 shall apply to that person and to that person’s functions as a person so appointed as it applies to a charity trustee of the charity concerned and to the duties of a charity trustee as such; and

(b) the Commission may apply to the Court for directions in relation to any particular matter arising in connection with the discharge of those functions.

(5) The Court may on an application under subsection (4)(b)—

(a) give such directions, or

(b) make such orders declaring the rights of any persons (whether before the Court or not),

as it thinks just; and the costs of any such application shall be paid by the charity concerned.

(6) Regulations made by the Department may make provision with respect to—

(a) the appointment and removal of persons appointed in accordance with this section;

(b) the remuneration of such persons out of the income of the charities concerned;

(c) the making of reports to the Commission by such persons.

(7) Regulations under subsection (6) may, in particular, authorise the Commission—

(a) to require a person so appointed to give security for the due discharge of that person’s functions;

(b) to determine the amount of that person’s remuneration;

(c) to allow any amount of remuneration in such circumstances as are prescribed by the regulations.

Power to give specific directions for protection of charity

36.— (1) This section applies where, at any time after the Commission has instituted an inquiry under section 22 with respect to any charity, it is satisfied as mentioned in section 33(1)(a) or (b).

(2) The Commission may by order direct—

(a) the charity trustees,

(b) any trustee for the charity,

(c) any officer or employee of the charity, or

(d) (if a body corporate) the charity itself,

to take any action specified in the order which the Commission considers to be expedient in the interests of the charity.

(3) An order under this section—

(a) may require action to be taken whether or not it would otherwise be within the powers exercisable by the person or persons concerned, or by the charity, in relation to the administration of the charity or to its property, but

(b) may not require any action to be taken which is prohibited by any statutory provision or expressly prohibited by the trusts of the charity or is inconsistent with its purposes.

(4) Anything done by a person or body under the authority of an order under this section shall be deemed to be properly done in the exercise of the powers mentioned in subsection (3)(a).

(5) Subsection (4) does not affect any contractual or other rights of any other person arising in respect of anything which has been done under the authority of such an order.

Power to direct application of charity property

37.— (1) This section applies where the Commission is satisfied—

(a) that a person or persons in possession or control of any property held by or on trust for a charity is or are unwilling to apply it properly for the purposes of the charity, and

(b) that it is necessary or desirable to make an order under this section for the purpose of securing a proper application of that property for the purposes of the charity.

(2) The Commission may by order direct the person or persons concerned to apply the property in such manner as is specified in the order.

(3) An order under this section—

(a) may require action to be taken whether or not it would otherwise be within the powers exercisable by the person or persons concerned in relation to the property, but

(b) may not require any action to be taken which is prohibited by any statutory provision or expressly prohibited by the trusts of the charity.

(4) Anything done by a person under the authority of an order under this section shall be deemed to be properly done in the exercise of the powers mentioned in subsection (3)(a).

(5) Subsection (4) does not affect any contractual or other rights of any other person arising in respect of anything which has been done under the authority of such an order.

Copy of order under section 33, 34, 36 or 37, and Commission’s reasons, to be sent to charity

38.— (1) Where the Commission makes an order under section 33, 34, 36 or 37, it must send the documents mentioned in subsection (2)—

(a) to the charity concerned (if a body corporate), or

(b) (if not) to each of the charity trustees.

(2) The documents are—

(a) a copy of the order, and

(b) a statement of the Commission’s reasons for making it.

(3) The documents must be sent to the charity or charity trustees as soon as practicable after the making of the order.

(4) The Commission need not, however, comply with subsection (3) in relation to the documents, or (as the case may be) the statement of its reasons, if it considers that to do so—

(a) would prejudice any inquiry or investigation, or

(b) would not be in the interests of the charity;

but, once the Commission considers that this is no longer the case, it must send the documents, or (as the case may be) the statement, to the charity or charity trustees as soon as practicable.

(5) Nothing in this section requires any document to be sent to a person who cannot be found or who has no known address.

Publicity relating to schemes

39.— (1) The Commission may not—

(a) make any order under this Act to establish a scheme for the administration of a charity, or

(b) submit such a scheme to the Court or the Department for an order giving it effect,

unless, before doing so, the Commission has complied with the publicity requirement in subsection (2).

This is subject to any disapplication of that requirement under subsection (4).

(2) The publicity requirement is that the Commission must give public notice of its proposals, inviting representations to be made to it within a period specified in the notice.

(3) The time when any such notice is given or any such communication takes place is to be decided by the Commission.

(4) The Commission may determine that the publicity requirement is not to apply in relation to a particular scheme if it is satisfied that—

(a) by reason of the nature of the scheme, or

(b) for any other reason,

compliance with the requirement is unnecessary.

(5) Where the Commission gives public notice of any proposals under this section, the Commission—

(a) must take into account any representations made to it within the period specified in the notice, and

(b) may (without further notice) proceed with the proposals either without modifications or with such modifications as it thinks desirable.

(6) Where the Commission makes an order under this Act to establish a scheme for the administration of a charity, a copy of the order must be available, for at least a month after the order is published, for public inspection at all reasonable times at the Commission’s office.

(7) Any public notice of any proposals which is to be given under this section—

(a) is to contain such particulars of the proposals, or such directions for obtaining information about them, as the Commission thinks sufficient and appropriate, and

(b) is to be given in such manner as the Commission thinks sufficient and appropriate.

Publicity for orders relating to trustees or other individuals

40.— (1) The Commission may not make any order under this Act to appoint, discharge or remove a charity trustee or trustee for a charity, other than—

(a) an order relating to the official custodian, or

(b) an order under section 33(1)(ii),

unless, before doing so, the Commission has complied with the publicity requirement in subsection (2).

This is subject to any disapplication of that requirement under subsection (4).

(2) The publicity requirement is that the Commission must give public notice of its proposals, inviting representations to be made to it within a period specified in the notice.

(3) The time when any such notice is given is to be decided by the Commission.

(4) The Commission may determine that the publicity requirement is not to apply in relation to a particular order if it is satisfied that for any reason compliance with the requirement is unnecessary.

(5) Before the Commission makes an order under this Act to remove, without the consent of the person concerned, a person who is—

(a) a charity trustee or trustee for a charity, or

(b) an officer, agent or employee of a charity,

the Commission must give to that person not less than one month’s notice of its proposals, inviting representations to be made to it within a period specified in the notice.

This does not apply if the person cannot be found or has no known address.

(6) Where the Commission gives notice of any proposals under this section, the Commission—

(a) must take into account any representations made to it within the period specified in the notice, and

(b) may (without further notice) proceed with the proposals either without modifications or with such modifications as it thinks desirable.

(7) Any notice of any proposals which is to be given under this section—

(a) is to contain such particulars of the proposals, or such directions for obtaining information about them, as the Commission thinks sufficient and appropriate, and

(b) (in the case of a public notice) is to be given in such manner as the Commission thinks sufficient and appropriate.

(8) Any notice to be given under subsection (5)—

(a) may be given by post, and

(b) if given by post, may be addressed to the recipient’s last known address.

Property vested in official custodian

Entrusting charity property to official custodian, and termination of trust

41.— (1) The Court may by order—

(a) vest in the official custodian any land held by or in trust for a charity;

(b) authorise or require the persons in whom any such land is vested to transfer it to the official custodian; or

(c) appoint any person to transfer any such land to the official custodian;

but this subsection does not apply to any interest in land by way of mortgage or other security.

(2) Where property is vested in the official custodian in trust for a charity, the Court may make an order discharging the official custodian from the trusteeship as respects all or any of that property.

(3) Where the official custodian is discharged from trusteeship of any property, or the trusts on which the official custodian holds any property come to an end, the Court may make such vesting orders and give such directions as may seem to the Court to be necessary or expedient in consequence.

(4) No person shall be liable for any loss occasioned by acting in conformity with an order under this section or by giving effect to anything done in pursuance of such an order, or be excused from so doing by reason of the order having been in any respect improperly obtained.

Supplementary provisions as to property vested in official custodian

42.— (1) Subject to the provisions of this Act, where property is vested in the official custodian in trust for a charity, the official custodian shall not exercise any powers of management, but shall as trustee of any property have all the same powers, duties and liabilities, and be entitled to the same rights and immunities, and be subject to the control and orders of the court, as the Department may by regulations prescribe.

(2) Subject to subsection (3), where any land is vested in the official custodian in trust for a charity, the charity trustees shall have power in the name of, and on behalf of, the official custodian to execute and do all assurances and things which they could properly execute or do in their own name and on their own behalf if the land were vested in them.

(3) If any land is so vested in the official custodian by virtue of an order under section 33, the power conferred on the charity trustees by subsection (2) shall not be exercisable by them in relation to any transaction affecting the land, unless the transaction is authorised by order of the Court or of the Commission.

(4) Where any land is vested in the official custodian in trust for a charity, the charity trustees shall have the like power to make obligations entered into by them binding on the land as if it were vested in them; and any covenant, agreement or condition which is enforceable by or against the official custodian by reason of the land being vested in the official custodian shall be enforceable by or against the charity trustees as if the land were vested in them.

(5) In relation to a corporate charity, subsections (2), (3) and (4) shall apply with the substitution of references to the charity for references to the charity trustees.

(6) Subsections (2), (3) and (4) shall not authorise any charity trustees or charity to impose any personal liability on the official custodian.

(7) Where the official custodian is entitled as trustee for a charity to the custody of securities or documents of title relating to the trust property, the official custodian may permit them to be in the possession or under the control of the charity trustees without thereby incurring any liability.

Establishment of common investment or deposit funds

Schemes to establish common investment funds

43.— (1) The Court or the Commission may by order make and bring into effect schemes (in this section referred to as "common investment schemes") for the establishment of common investment funds under trusts which provide—

(a) for property transferred to the fund by or on behalf of a charity participating in the scheme to be invested under the control of trustees appointed to manage the fund; and

(b) for the participating charities to be entitled (subject to the provisions of the scheme) to the capital and income of the fund in shares determined by reference to the amount or value of the property transferred to it by or on behalf of each of them and to the value of the fund at the time of the transfers.

(2) The Court or the Commission may make a common investment scheme on the application of any two or more charities.

(3) A common investment scheme may be made in terms admitting any charity to participate, or the scheme may restrict the right to participate in any manner.

(4) A common investment scheme may provide for appropriate bodies to be admitted to participate in the scheme (in addition to the participating charities) to such extent as the trustees appointed to manage the fund may determine.

(5) In this section "appropriate body" means—

(a) a Scottish recognised body, or

(b) an England and Wales charity,

and, in the application of the relevant provisions in relation to a scheme which contains provisions authorised by subsection (4), "charity" includes an appropriate body.

"The relevant provisions" are subsections (1) and (6) to (8) and (in relation only to a charity within paragraph (b)) subsection (9).

(6) A common investment scheme may make provision for, and for all matters connected with, the establishment, investment, management and winding up of the common investment fund, and may in particular include provision—

(a) for remunerating persons appointed trustees to hold or manage the fund or any part of it, with or without provision authorising a person to receive the remuneration notwithstanding that the person is also a charity trustee of or trustee for a participating charity;

(b) for restricting the size of the fund, and for regulating as to time, amount or otherwise the right to transfer property to or withdraw it from the fund, and for enabling sums to be advanced out of the fund by way of loan to a participating charity pending the withdrawal of property from the fund by the charity;

(c) for enabling income to be withheld from distribution with a view to avoiding fluctuations in the amounts distributed, and generally for regulating distributions of income;

(d) for enabling money to be borrowed temporarily for the purpose of meeting payments to be made out of the funds;

(e) for enabling questions arising under the scheme as to the right of a charity to participate, or as to the rights of participating charities, or as to any other matter, to be conclusively determined by the decision of the trustees managing the fund or in any other manner;

(f) for regulating the accounts and information to be supplied to participating charities.

(7) A common investment scheme, in addition to the provision for property to be transferred to the fund on the basis that the charity shall be entitled to a share in the capital and income of the fund, may include provision for enabling sums to be deposited by or on behalf of a charity on the basis that (subject to the provisions of the scheme) the charity shall be entitled to repayment of the sums deposited and to interest thereon at a rate determined by or under the scheme; and where a scheme makes any such provision it shall also provide for excluding from the amount of capital and income to be shared between charities participating otherwise than by way of deposit such amounts (not exceeding the amounts properly attributable to the making of deposits) as are from time to time reasonably required in respect of the liabilities of the fund for the repayment of deposits and for the interest on deposits, including amounts required by way of reserve.

(8) Except in so far as a common investment scheme provides to the contrary, the rights under it of a participating charity shall not be capable of being assigned or charged, nor shall any trustee or other person concerned in the management of the common investment fund be required or entitled to take account of any trust or other equity affecting a participating charity or its property or rights.

(9) The powers of investment of every charity shall include power to participate in common investment schemes unless the power is excluded by a provision specifically referring to common investment schemes in the trusts of the charity.

(10) A common investment fund shall be deemed for all purposes to be a charity.

(11) Subsection (10) shall apply not only to common investment funds established under the powers of this section, but also to any similar fund established for the exclusive benefit of charities by or under any statutory provision relating to any particular charities or class of charity.

Schemes to establish common deposit funds

44.— (1) The Court or the Commission may by order make and bring into effect schemes (in this section referred to as "common deposit schemes") for the establishment of common deposit funds under trusts which provide—

(a) for sums to be deposited by or on behalf of a charity participating in the scheme and invested under the control of trustees appointed to manage the fund; and

(b) for any such charity to be entitled (subject to the provisions of the scheme) to repayment of any sums so deposited and to interest thereon at a rate determined under the scheme.

(2) Subject to subsection (3), the following provisions of section 43, namely—

(a) subsections (2), (3) and (6), and

(b) subsections (8) to (11),

shall have effect in relation to common deposit schemes and common deposit funds as they have effect in relation to common investment schemes and common investment funds.

(3) In its application in accordance with subsection (2), subsection (6) of section 43 shall have effect with the substitution for paragraphs (b) and (c) of the following paragraphs—

"(b) for regulating as to time, amount or otherwise the right to repayment of sums deposited in the fund;

(c) for authorising a part of the income for any year to be credited to a reserve account maintained for the purpose of counteracting any losses accruing to the fund, and generally for regulating the manner in which the rate of interest on deposits is to be determined from time to time;".

(4) A common deposit scheme may provide for appropriate bodies to be admitted to participate in the scheme (in addition to the participating charities) to such extent as the trustees appointed to manage the fund may determine.

(5) In this section "appropriate body" means—

(a) a Scottish recognised body, or

(b) an England and Wales charity,

and, in the application of the relevant provisions in relation to a scheme which contains provisions authorised by subsection (4), "charity" includes an appropriate body.

(6) "The relevant provisions" are—

(a) subsection (1), and

(b) subsections (6) and (8) of section 43, as they apply in accordance with subsections (2) and (3), and

(c) (in relation only to a charity within subsection (5)(b)) subsection (9) of that section, as it so applies.

Meaning of "Scottish recognised body" and "England and Wales charity" in sections 43 and 44

45.— (1) In sections 43 and 44 "Scottish recognised body" means a body—