Removal from the Register
28.Section 18 requires OSCR to remove a charity from the Scottish Charity Register within 28 days of receiving an application from the charity itself requesting this, and to confirm in a notice that this has been done.
29.Under section 30(1), one of the regulatory actions available to OSCR upon completion of inquiries about a charity is that it must remove a charity from the register if it is satisfied that the charity no longer meets the charity test. If OSCR, following inquiries into a charity, gives a direction to the charity to take certain steps, but the charity fails to comply, OSCR must remove the charity from the register.
30.However, even when a body has been removed from the Register, any assets held by the body before it was removed which were raised to be used for charitable purposes are effectively “locked” for charitable uses. Section 19 protects such assets, ensuring that several provisions of the Act continue to apply to them, despite the charity’s removal from the register. The following provisions continue to apply:
Sections 28 and 29: power of OSCR to make inquiries about charities (i.e. the body holding the protected assets), and to obtain documents and information;
Sections 31(1) to (3), and (5) to (9): powers of OSCR following inquiries;
Section 32: notices and directions under section 31;
Section 33(2) to (5): reports on inquiries;
Section 34(1) to (3), (5)(a) to (c) and (f) to (h), (7) and (10)(b): powers of Court of Session;
Section 37: on charging expenses for a transfer scheme; and
Chapter 6: sections 44 and 45 on charity accounts.
31.These provisions allow OSCR to continue to oversee the use of the locked assets even though the body holding them is no longer a charity. It can investigate and take action if required. It can ensure that the body continues to prepare accounts showing how the assets are being used.
32.Under section 19(4), OSCR may apply to the Court of Session for a scheme to transfer the locked assets of a charity removed from the register to another charity. A transfer scheme may only be approved if the Court is satisfied that it is needed to protect the assets or secure their proper application for the original purposes, and that such a transfer is the better way for this to be achieved. Section 19(8) allows the Scottish Ministers to exclude certain property which they specify in an affirmative order from this section. The Scottish Ministers would have to have made an order specifying either items or types of property or property owned by particular persons which come under this description. This would, for instance, allow the Scottish Ministers to ensure that national assets owned by a charity removed from the Register could not be transferred to other bodies, potentially being lost to the nation.
