Scottish charity law: consultation

Section 4: A power to issue positive directions to charities

43. OSCR has legal powers to issue specific types of direction to charities and charity trustees. The purpose of some of these powers is to protect charities’ assets or to remedy and/or prevent further misconduct by trustees where a risk has been identified as a result of OSCR’s inquiries.

44. Most of OSCR’s powers are interdictory or preventative, requiring charity trustees or others not to take particular actions. OSCR cannot direct charity trustees to take a specified positive action to remedy non-compliance or protect charitable assets.

45. One option would be to give OSCR a power to issue positive directions. The Charity Commission for England and Wales and the Charity Commission for Northern Ireland both have a wide ranging power of positive direction. Experience to date is that the powers have been used sparingly.

46. If OSCR had such a power this could enhance its inquiry and enforcement powers in terms of protecting charitable assets and supporting good governance.

47. Examples could include the power to direct a charity to:

• appoint additional trustees (for example, in order to form a quorum or meet a minimum specified in a governing document).
• take a specific action in line with the charity’s governing document (for example, hold an AGM to make a specific decision).
• manage a conflict of interest effectively and demonstrably.

48. A positive direction could be coupled with a corresponding obligation on OSCR to publish an associated inquiry report, which could improve public confidence that OSCR were taking positive steps to remedy misconduct and protect assets.

49. If a charity failed to comply with a positive direction that OSCR had issued, it could be classed as misconduct. This could mean that enforcement action would be taken against the charity or trustees as appropriate. This is currently the case if a charity fails to comply with a direction from OSCR.

50. The Scottish Parliament Public Audit Committee has recommended that Scottish Ministers review OSCR’s powers in this respect^[2].

Question 10. Should OSCR be given a power to issue positive directions?

Yes

No

Question 11. If you answered Yes to question 10, should a power to issue positive directions be wide ranging or a specific power? Please select one below:

Wide ranging

A specific power

Question 12. If a charity failed to comply with a positive direction that OSCR had issued, should this be classed as trustee misconduct?

Yes

No

If you wish to explain your responses to any of the questions in Section 4, please do so in the box below (e.g. why you think yes, why you think no, why you think a positive direction should be wide ranging or a specific power, what should a specific power include?)