How will the 2023 Act potentially impact you as a Charity Trustee?

As a charity trustee, you will be aware of the recent developments in the regulation of Scottish charities, namely the Charities (Regulation and Administration) (Scotland) Act 2023 (‘the 2023 Act’). Although the 2023 Act received Royal Assent on 9th August 2023, we do not yet have definitive commencement dates for the changes brought about by the Act, with placeholders being given of Spring 2024 and Summer 2025. The reason for this is to allow the processes and procedures to be developed and put in place by the Scottish Charity Regulator (“OSCR”). Once these processes and procedures have been worked out, we have no doubt that OSCR will widely publicise how they will operate and what actions (if any) charity trustees will need to take, and to what deadlines.

Therefore, while we do not yet know the detail of the impact of the 2023 Act, we do know the ‘headline’ impact. Below is a summary of a few key changes contained in the 2023 Act which may affect individual charity trustees.

Each charity’s entry in the Scottish Charity Register will contain the names of the charity’s trustees. This will have no real impact for trustees of charitable companies as the Register of Companies already lists currently appointed (and resigned) directors. Two practical things to think about here are: (1) remembering to tell OSCR when there have been changes to your trustee board – currently you only have to inform OSCR of any such changes if the change involves the Principal Contact, and (2) if you think that your name should be excluded from appearing on the Scottish Charity Register – there will be exemptions that trustees can use if necessary.

Following on from the above, as well as trustees’ names appearing externally on the Scottish Charity Register, OSCR will also maintain an internal register of all charity trustees, populated with more details than just their names. Again, the practical impact here is being aware of the requirement to keep the entry up to date.

The third register to be created and maintained by OSCR as a result of the 2023 Act is the register of removed persons. OSCR will create a publicly searchable register of individuals who have been ‘removed from being concerned in the management or control’ of a charity. There will be exemptions applicable, such as if a waiver has been granted, if the person has died or if including the person’s name is likely to jeopardise the safety or security of the person. If you find yourself in the position of being removed as a charity trustee, you will be entered on this register, unless an exemption applies.

Finally, you cannot take on the role of a charity trustee if you are disqualified under the Charities and Trustee Investment (Scotland) Act 2005 (‘the 2005 Act’). The 2023 Act expands on the specific offences which would disqualify an individual from being a charity trustee. There is potential, however small, for a scenario where an individual who was not previously disqualified, finds themselves disqualified under the 2023 Act. In this case, when this section of the 2023 Act comes into force, that person becomes immediately disqualified and there doesn’t appear (at the moment) to be any transitional or grace periods. OSCR has an existing power to waive a disqualification. In this case, the individual could apply to OSCR for a waiver to continue to act as a charity trustee. If you are in the unfortunate position to find yourself disqualified as a result of the 2023 Act, we would recommend that early consideration of this be a matter of priority.

While the 2023 Act does not require any immediate action by charity trustees, you will need to consider the above matters, amongst others, in due course. The commencement of the various provisions of the 2023 Act could be used as a catalyst for internal reviews to ensure you are up to date and fit for purpose.

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