Strengthening Scottish charity law: analysis of engagement responses

9. Feedback from Events

Context

9.1 This section provides a summary of the findings arising from the events facilitated by external stakeholders as part of the Strengthening Charity Law engagement process. There were many common views to those expressed in the online survey as presented in the previous sections of the report. Rather than repeat all similar findings here, this section provides some key messages and wider points raised.

Proposal 1 – Publishing annual reports and accounts in full for all charities on the Scottish Charity Register

Question 1: In what circumstances should there be a dispensation to full annual reports and accounts publication?

9.2 There was some reference to support for no dispensations at all (i.e. public confidence, transparency and accountability arguments were put forward).

9.3 Where there was support for dispensations, it was generally noted that the bar should be set high for any exemptions to full annual reports and accounts publication. There would only be a very small number and most charities would never need to consider it. Guidance is key, and should include a non-exhaustive list of examples for dispensation.

9.4 The importance of giving charities an opportunity to discuss the potential for dispensation with OSCR was emphasised as important. Charities could be required to contact OSCR if they met one of the reasons, or if they were in any doubt.

9.5 In considering circumstances for dispensation - the safety and security of people and premises was most frequently mentioned. Comments made included:

• Where a name or address could compromise either a trustee's or beneficiary's safety.
• Charities that worked with vulnerable groups such as migrants, refugees and abuse survivors, and those involved in national security.
• Some dispensation around protected services/characteristics.
• Where publication could cause reputational damage to a charity (e.g. resulting from any adverse publicity or personal behaviour of an individual unrelated to their trustee position.
• A specific concern over the addresses for Independent Examiners was raised (i.e. many Independent Examiners of small charities will use their home addresses).
• Smaller charities with modest incomes (e.g. less than £10,000). An alternative suggestion was that smaller charities could be required to produce a "simpler" set of reports and accounts than larger charities.

9.6 A wider viewpoint was that the current income threshold system for publishing accounts of eligible charities could potentially encourage "unscrupulous charities to fail to declare some income in order to prevent their accounts and annual reports being published". However, it was added that implementing an income threshold for smaller charities to publish basic financial information could mitigate this potential problem.

9.7 Additional points or concerns raised regarding full annual reports and accounts publication for all charities, included:

• GDPR concerns – there is a need to protect people and personal information. Public safety and the security of premises are vital.
• Identity theft concerns over signatures/photographs being published.
• Potential to be victims of cybercrime.
• It might become more difficult for charities to attract new board members.
• It could place smaller charities at a disadvantage (i.e. less resource, limited IT skills) and/or cause additional administrative work.

9.8 There should not be more personal information in reports and accounts than is necessary.

9.9 Some specific points were raised regarding charities that were also companies, cross-border charities and/or also subject to regulation by another regulator, for example:

• Where a charity is also a company, it was suggested that OSCR should just keep the link to Companies House rather than OSCR also publishing reports/accounts. The link to companies' accounts on the register should take you to the correct page on the Companies House register rather than the homepage.
• Cross-border charities and/or those that are companies the Register should also display their other registration numbers.
• It could be explored whether it is possible to share data between regulators and Companies House (i.e. one upload of accounts could be used).

9.10 The process for requesting dispensation should be widely publicised, transparent and clear.

Question 2: If dispensations are made, should some form of annual reports and accounts always be published, for example in a redacted or abbreviated form?

9.11 There was strong support for all charities, regardless of size or legal structure, to have their accounts published in some form. There should be full transparency and accountability particularly where charities have accessed public funding. Financial information should be published (e.g. profit and loss, micro accounts, basic accounting, etc).

9.12 Various points were raised regarding the redaction or abbreviation of published annual reports and accounts if dispensations are made.

9.13 First, it was suggested that redaction could continue for those charities that include personal information in their reports. However, it was noted that there should not be information about vulnerable beneficiaries in the reports (i.e. there should not be more personal information in reports and accounts than is necessary). It was noted, however, that redaction on a case-by-case basis could be resource intensive for OSCR.

9.14 Second, grant giving bodies make use of charity accounts and it was noted that redacted accounts pose additional work for both funders (to request unredacted accounts) and for charities (to provide the full information). Over redaction also made accounts more difficult to understand for the reader.

9.15 An option of micro accounts for smaller charities (like Companies House) could be considered. Another suggestion was that a comprehensive template for the Trustees Annual Report (or perhaps a simplified version of the SORP or FRSSE for smaller charities) and accounts could be drafted that clearly directed trustees where they should and should not use personal information.

9.16 A wider comment was that abbreviated reports and accounts (rather than redaction) could increase public confidence that information was not being hidden.

Proposal 2 – An internal database and external register of charity trustees

Question 3: What information should be included in an internal database?

9.17 First, there needs to be a clear purpose for collecting and using the information held on an internal OSCR database, and clear rules on security, retention, and third party access. Data protection would be of paramount importance.

9.18 Second, OSCR would be best placed to decide what information it needs (but it must be clear on the reasons why the information is needed). A risk assessment could be undertaken by OSCR to better understand the minimum data requirements for internal (and external) databases (e.g. the more information collected the more work for OSCR; maintaining databases can be resource intensive).

9.19 Some support was expressed for the internal database to hold more detailed/personal information than the public list (Question 5). For example, name of each trustee, address, date of birth, email address, telephone number, profession/occupation, designation, date appointed/retired, current and/or previous trusteeships, reason for leaving charity boards were all suggested to varying degrees. It was suggested that this level of detail could help charities from a safeguarding and due diligence perspective.

9.20 An alternative suggestion was that name, date of birth, address might be more appropriate. This relates back to points made about essential or minimum requirements.

9.21 The information held by OSCR could be similar to that held by Companies House. Or information provided in the trustee declaration form could be a good basis for the information to be included in an internal database of all trustees.

9.22 Mission creep must, however, be avoided.

9.23 A number of benefits of OSCR having an internal database were highlighted:

• It would strengthen accountability of the charity sector.
• It would increase public confidence in Scottish charities that OSCR has access to up-to-date information and contact details.
• OSCR should be able to contact all charity trustees, especially when there is an issue with a dominant chair or other trustee.
• It could help to mitigate concerns from community representatives around the potential for too much/sensitive information being made publically available.

9.24 Wider points raised included:

• It could be part of a formal registration as a charity trustee.
• How would the information be verified?
• Do trustee names stay on the register if they are no longer with the charity?
• Will disqualified trustees information be included?
• It would be helpful to capture equalities data.

Question 4: How should the internal database information be kept up to date?

9.25 The importance of keeping information on the internal database up-to-date was considered vital, and that the process for doing so should be manageable for OSCR, the charity sector, and for smaller organisations in particular.

9.26 A process similar to registering a new director appointment with Companies House could be beneficial in keeping an up-to-date record of serving charity trustees. Further, a charity that is also a company limited by guarantee will already need to provide such information for its directors - it was suggested the streamlining of processes could be beneficial.

9.27 Various suggestions were made on how the internal database information could be kept up-to-date by charities:

• As part of the charity annual return process (e.g. via annual communication from OSCR - email/letter - with the annual return containing an update form to trustees with deadline for submission to OSCR (i.e. confirm current and correct or provide updates).
• An option for charities to keep OSCR up-to-date throughout the year with any changes (e.g. via a login to portal as part of OSCR Online).
• There could be a duty to update details immediately or within a certain timeframe as changes happen.
• Through independent examiners/auditors.

9.28 All trustees could have access to ensure their details are correct and up to date.

9.29 It was reiterated that OSCR would need to make it clear how the information provided would be used (and how long it would be retained for) – as some charities felt that they provided this type of information regularly.

Question 5: What information should be included in a public list of charity trustees?

9.30 A public list would build public trust and help charities with their due diligence. There was support for information included in a public list of charity trustees to be "basic", "light-touch" or "limited" compared with the proposed internal database. For example: name, date of birth, designation, charity office address, charity email address, list of other charitable appointments were again mentioned to varying extents.

9.31 It was also suggested that only trustee names should be made public. This was largely due to potential sensitivities or concerns regarding detailed personal information being made available in the public domain (e.g. personal addresses, many charities/SCIOs are user-led, etc). Further, the level/type of information included in a public list might act as a barrier to trustee recruitment.

9.32 There was support for the database to have a "searchable function" for information on charity trustees to be found easily.

9.33 A question posed was whether there would there be a limit on the number of trustees included in a public list per charity (i.e. what about those charities with a large number of trustees?).

Question 6: In what circumstances should there be an exception to being included in a public list?

9.34 The main points raised can be summarised as follows:

• Where publication could put the safety and security of people and premises at risk.
• Concerns were raised about including details of trustees who have experienced abuse or victims of crime being listed on the public register.
• Businesses with a charitable trust might not keen to share addresses of trustees (e.g. most of whom are business leaders).
• Smaller charities whose trustee home address was the registered office.
• Where discussed, opinions were divided on whether religious or LGBTQI trustees could apply for exemption. Some were in support of an exception, while others believed taking on a trustee role comes with a responsibility to be registered.
• Formal witness protection programmes (if name not changed).
• Trustees of animal welfare charities, etc.

9.35 The process for requesting an exception to being included in a public list should be widely publicised, transparent and clear.

9.36 Limited reference within event notes to support for no exceptions.

Question 7: How long should a disqualified trustee remain on the list?

9.37 The range of views provided included, for example, that:

• Disqualified trustees should remain on the list for as long as their disqualification lasts. Period remaining on the list thereafter should be in line with spent convictions legislation.
• Five years.
• Another viewpoint was that disqualified trustees should remain on the list for a fixed timeframe of six years (i.e. aligns with bankruptcy criteria).
• The Charity Commission in England and Wales has a recommendation of 15 years, however, this might take into consideration the period of record retention with regards to GDPR where the recommendation is six years.
• Ten years.
• Permanently (e.g. for more serious offences).
• Those who are disqualified should not be made available to the public. An FOI could be made to OSCR if required.

9.38 A wider suggestion was for a "scale" to be used to guide how long a disqualified trustee should remain on the list. Length of time could be dependent on the nature of the disqualification (i.e. proportionate to the misdemeanor).

9.39 Wider points raised were that:

• Such a list should be accessible only to charities (rather than the wider public) for the purpose of making an informed decision on trustee recruitment/ensuring existing trustees have not become disqualified (e.g. (accessed only via OSCR online).
• Rather than a viewable list of all disqualified trustees, charities should only be able to search by a name and date of birth to return a result of disqualified or not. This could avoid instances of mistaken identity or potential misuse of information.
• A decision review/appeals process should be put in place.
• There could be exceptions for people with criminal records/addictions who are reformed and wish to support charities that provide services for e.g. people with addictions or mental health issues (i.e. life experience argument).

9.40 Questions posed:

• Will OSCR retain a record of disqualified trustees once the names have lapsed from a public register?
• Will consideration be given to removing people from the list at their time of death?
• How would the list be accessed and who would be able to access it?

Question 8: What information should be available in the list?

9.41 A range of views were provided:

• Information in the list should align with that made available on disqualification by Companies House.
• There was some disagreement noted on whether the reason for disqualification should be included on the public list. Some event participants considered this important while others believed that it was only necessary to know whether a disqualification has been imposed.
• A link to the inquiry report should be included.
• Details of charity, name, address and date of birth of trustee, time served on charity board, date of disqualification were all mentioned - but to varying degrees.

9.42 Some concerns were raised that the extent of information on the public list regarding disqualified trustees could be detrimental to other aspects of an individual's life and could affect trustee recruitment. Listing the name of the organisation could negatively impact the charity/SCIO concerned.

9.43 Where there was narrative around trustee "name" only – there was recognition that this had the potential for confusion over people with the same name, leading to negative impacts for "innocent people". A name on its own might not be sufficient.

9.44 Some suggestion that the list should be accessible via OSCR website for charities to vet prospective trustees.

9.45 A wider point was that it should not be a 'browsable' list, but a 'searchable' list.

9.46 Wider questions or concerns raised:

• The difference between disqualification and suspension and whether both would be included on the list.
• Whether this information would be flagged up through a PVG check.

Proposal 3 – Criteria for automatic disqualification of charity trustees and individuals in senior management positions in charities

Question 9: What factors should be considered in defining a 'senior manager'?

9.47 Key points raised were around the difficulty in defining a senior manager. Some organisations might find this more difficult than others, and the term could be "open to interpretation". A clear definition was considered crucial. It was suggested that OSCR could create a definition in line with the one developed for trustees.

9.48 It was largely considered appropriate to identify the person(s) in operational roles and positions of power/influence/decision-making within an organisation (i.e. functions and activities such as finance, HR, strategic and operational control and oversight, subject to the direction of trustees) rather than the title/paid position. For example: Chief Executive Office, Chief Finance Officer, Secretary, Treasurer, any office bearer.

9.49 As a wider example – in a volunteer-led charity it was noted that there will be an unofficial leader based on who makes the decisions rather than who has the title of manager.

9.50 It was suggested that "persons with significant control" or "persons with a senior role" might be more useful terms than "senior manager". There was wider reference to legal definitions of persons with significant control that could be used.

9.51 Another suggestion was that senior manager could be defined as the most senior paid person in a charity – this would ensure that the proposal accounts for charities of all sizes and provides flexibility where this this role could be a CEO, project manager, development manager, coordinator, etc.

9.52 Wider questions or points raised:

• If OSCR has the power to disqualify senior managers within charities then would this change the role/duties of the Trustees to monitor senior managers and reporting to OSCR?
• How would automatic disqualification of individuals in senior management positions in charities interact with employment rights?
• Some suggested that there should be a requirement for all trustees and employees to have a PVG check.

Proposal 4 – A power to issue positive directions to charities

Question 10: If a positive power of direction were to be specific, what areas should be subject to the power, or are there any areas that should not fall within the power?

9.53 It was noted that powers are only as good as the ability to enforce it – a question raised was whether OSCR has the capability and capacity to expand its powers.

9.54 It was noted that other regulators use these types of powers to good effect (e.g. Scottish Housing Regulator).

9.55 One view was that charities are looking for more than "recommendations" from OSCR as these can be "grey and unclear". If it is just a recommendation then there is no scope for OSCR to check up following the inquiry. Want a 'must' rather than a 'should' - OSCR should have the power of enforcement to ensure that the charity sector is held to account. An alternative view was that recommendations could simply be made more specific to overcome the issue of grey or unclear recommendations.

9.56 OSCR should only get involved "when it has to and not simply because it has the power to". Some suggestions that could fall within its remit include:

• Governance.
• Finance and financial controls.
• Health and safety.
• Safeguarding.
• Dealing with non-attendance – be strict in removing trustees who do not turn up at three board meetings consecutively without valid reasons if the governance document states this.
• Some actions that might harm the reputation of the sector or the organisation – e.g. non-financial related crime/conduct that could equally be harmful to the organisation, however, current advice from OSCR is that each organisation needs to use their own constitutional powers to manage those matters and could lead to confusion and mismanagement of serious incidents.
• A positive power of direction that extends to assets and being able to freeze charitable assets and bank accounts. If the organisation is in crisis, OSCR should be able to tell the organisation to appoint new trustees with the appropriate skillsets required.
• A positive direction for the disposal of charity funds and managing accumulated reserves to ensure the correct beneficiaries.
• It would be helpful if OSCR could intervene where there was an internal dispute - this would remove any doubt about what the charity should do.

9.57 There was feedback that OSCR "should not stray" into operational matters of charities (e.g. delivery of a charity's operational activities, policy development, HR, staffing arrangements/ employment were all mentioned). OSCR should not be involved when it is relevant to trustee duties unless they are not complying with trustee duties (e.g. submitting accounts, updating annual database, responding to legitimate queries).

9.58 Counter to this was feedback that "nothing should be out of scope in terms of what the direction could cover".

9.59 When a positive direction is issued OSCR should ensure that detailed instruction/guidance is provided to help charities comply.

9.60 There would also need to be mechanisms in place such as:

• The publication of inquiry reports.
• Information-sharing agreements with other key organisations.
• An appeals process to challenge any directions.
• An ability to amend a positive direction if the situation changes.

9.61 Wider points or questions raised:

• How would this interface with other regulators who have these powers e.g. Care Inspectorate?
• Is the issue of no consequences down to no capabilities or power for enforcement?
• Concern over the term "positive direction" - is this the same as special measures? Need to clarify what "positive direction" actually means.

Question 11: How long should a charity have to comply? What should be the consequences of non-compliance with a positive direction?

9.62 A key point raised was the importance of OSCR having sufficient flexibility, and that the length of time a charity should have to comply could depend on the context and factors such as:

• The nature, scale and severity of the issue(s) facing a charity.
• The size and capacity of a charity (i.e. staffing level).

9.63 There was reference to various timescales (e.g. proportionate to the actions required) for example:

• Three months.
• Six months.
• Between six months and one year.
• Between 18-24 months.
• For as long as needed as it is dependent on the direction from OSCR.

9.64 Timescales and progress milestones should be agreed between OSCR and the charity.

9.65 There could be steps alongside issuing a positive direction - either specific instructions of what needed to be complied with and giving charities the opportunity to seek help (e.g. from a financial professional, from a TSI).

9.66 Consequences of non-compliance should be proportionate in line with the nature of the non-compliance so as not to unnecessarily put beneficiaries at potential disadvantage.

9.67 If it is the case that there is non compliance and a reluctance to comply with a positive direction, then this should be classed as a breach of responsibilities/mismanagement (i.e. trustees are not putting the interests of the charity at the forefront), and should be dealt with accordingly (e.g. potential disqualification of trustees).

9.68 If a charity fails to comply with a positive direction after a reasonable timeframe, repeated attempts by OSCR to rectify the issue and support they should lose their charitable status. OSCR should, however, reserve the right to remove the charity from the Register as a "last resort".

9.69 Wider points raised:

• How will organisations balance the ask from OSCR and stick to their governing documents?
• Will this be in line with a charity's constitution?
• What happens about non-compliance in England and Wales?

Proposal 5 – Removal of Charities from the Scottish Register that are persistently failing to submit annual reports and accounts and may no longer exist

Question 12: What factors need to be considered to define 'persistent' failure to submit annual reports and accounts?

9.70 There was recognition within the event notes that charities must account for how public funding and donations have been used, and that charities have a responsibility and regulatory obligation/duty to prepare and submit annual reports and accounts.

9.71 Persistent failure should be investigated in the first instance. It was noted that this further highlight the importance of OSCR having access to an up-to-date internal database of charity trustees.

9.72 It was noted that not providing annual reports and accounts might be a sign of wider governance issues, but that it could also be a misunderstanding or that the charity does not have the skills and experience to deal with the issue it faces.

9.73 It is considered important that OSCR strikes the right balance in its approach – "firm" "proportionate", and with "discretion" in how it applies its powers/rules.

9.74 There might be valid mitigating factors and circumstances behind why a charity has not submitted its annual report and accounts. This situation is considered different to "avoidance" of engagement with OSCR, and should be handled accordingly and with "careful balance". For example, a positive direction could benefit the charity and trustees where they are given time to upskill, seek support and guidance to resolve the issue and move forward.

9.75 General support for a "strikes" out approach following repeat offences (e.g. two or three years of failing to submit accounts strikes then out); failing to reply to any direction by OSCR; and failing to get in touch with OSCR to explain any mitigating circumstances. There is a difference between charities/trustees who are failing to acknowledge/engage and those trying to rectify the issue but who face particular challenges/obstacles in doing so.

9.76 Failure to respond to reminders/adhere to a position direction would require a written warning before removal is considered. If there is an awareness that the charity is still operational and continues to fail to respond then this would be seen as persistently failing to submit and they should be removed from the register.

"All charities sign declarations at the start and on an annual basis that they understand their legal duties and responsibilities. Where these duties have not been complied with on more than 1 but no more than 2 occasions and where failure to rectify or direction provided have been ignored they should be removed".

9.77 Wider points raised:

• Guidance should be framed as positive rather than as directions or instructions.
• Could perhaps add 'under active consideration for removal'.
• The consultation does not make reference to the need for accounts to be compliant (pontifical "loophole" to avoid sanction).
• What would happen to the assets of removed charity?
• Does OSCR have the right to check the accounts of charities that have dissolved?
• What happens if the contact information held is wrong or out-of-date?
• Is this discussion warranted by the actual number of defaulting charities?
• Failure of communication can be a big problem – an internal database of trustees should help with this issue.

Question 13: What steps should OSCR take prior to a decision to remove? Should a positive direction to provide accounts always be required first?

9.78 There is clear and strong support for charities to be given a chance to rectify things – first issue a gentle reminder, if the charity engages fine, if there is no response or they are willfully not providing its annual report and accounts that is broadly considered a different scenario.

9.79 Positive direction would be an option as there may be certain circumstances that has prevented the charity from submitting accounts. This could be a lack of awareness that they are a charity, due to the principal contact moving on or possibly have passed away and new trustees come on board and don't have access to the relevant information they require to comply. They should be issued with a positive direction in this case, and signposted for support and guidance.

9.80 Another suggestion was that a charity that did not submit its annual report and accounts could be issued two warning letters (or variety of contact methods), then a final letter giving deadline for return or removed from the Register.

"A flag system should be introduced on the database for non-contact with the power to remove – No response should start a flag for the charity"

9.81 Providing deadlines is considered helpful – "it gives a lever to get things tied down from trustees, accountants, legal advisors, etc".

9.82 The repercussions of non-engagement and non-compliance should be made clear from the outset.

9.83 A positive power of direction should be used first - then remove. Opportunity for dialogue between OSCR and the charity was considered important. There should be a fair opportunity to rectify the issue and charities given fair warning. Charities must show a willingness to comply in a meaningful manner with the direction.

9.84 While some felt that sanctions should always be available to OSCR to use, others noted specific opposition to the use of fines.

9.85 OSCR could have the potential to freeze bank accounts while investigations are ongoing.

9.86 It was noted that OSCR should also have power to restore charities to the register, where appropriate.

Proposal 6 – All charities in the Scottish Charity Register to have and retain a connection in Scotland

Q14: What factors should be considered when defining what 'have and retain a connection to Scotland' means? Does this have to require a physical presence in Scotland, such as an office address or trustee address?

9.87 There was support for the establishment of fixed criteria and clear messaging and explanation of what organisations need to provide. A right to appeal should be established (and possibly waivers for special circumstances).

9.88 There must be someone that can be held accountable by OSCR in OSCR's jurisdiction.

9.89 Some feedback noted that there should be an office or trustees address or registered base in Scotland to ensure OSCR can regulate the charity sector effectively. SCIO's are required have a principle office or connection in Scotland, and so this should be the case for all charities. Physical presence in terms of a registered address but also a declaration as to where the charity operates.

"What legitimate reason would a charity, with no connection (as defined) to Scotland, have in registering as a 'Scottish Charity'?"

9.90 Others noted that a physical link might not be the best measurement of connection with Scotland. The 2019 consultation was felt to have been overtaken by recent events, with a move to more online working as a result of the global pandemic. Further, some examples of "purely online charities" have since emerged.

9.91 A registered address or one trustee was generally considered to be insufficient in terms of having and retaining a connection to Scotland – "it has to be a significant presence".

9.92 Mixed views were provided from discussions around whether having a trustee in Scotland would be grounds for registration in Scotland. Some noted that this was not the most useful indicator of a connection with Scotland.

9.93 Others felt that a certain quota/percentage of trustees could be required to have a Scottish address (and could include senior staff based in Scotland such as a Chief Executive). A hard measure such as a quota of trustees might be easier for OSCR to administer rather than the "woolier broad connection".

9.94 General agreement that 'Activities, Beneficiaries and Fundraising' appear to be the most obvious areas for need to register in Scotland. It was noted that these are the areas where most problems are likely to arise and require intervention from OSCR.

9.95 General agreement that 'Management and Control' might be another useful indicator of a connection – particularly for organisations whose operations are outwith Scotland (e.g. International Development).

9.96 Some agreement organisations shouldn't be able to register 'just in case' they may become active in Scotland at a later date.

9.97 Any loopholes should be closed.

9.98 A number of points were raised:

• Some concern was expressed on behalf of organisations whose position may change routinely (e.g. a pause in their work in Scotland). Would they be required to continually re-register, or would registration period last for a determined period?
• Some grey areas highlighted (e.g. if a grantmaker based outwith Scotland made grants to organisations within Scotland).
• Further clarity was needed on how would this work for overseas charities - especially if the majority of trustees are not in Scotland.
• Is there are a record of bodies with no link to Scotland registering with OSCR – a couple of cases; this is more of a preventative measure?
• Are we creating an elaborate set of regulations for a problem that doesn't exist – could OSCR use existing powers to remedy the edge cases?
• What about an organisation that is based in England and fundraises in Scotland to support development work overseas?