The Charities (Regulation and Administration) (Scotland) Act 2023 (Commencement No. 1, Transitional and Saving Provisions) Regulations 2024

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations bring various provisions of the Charities (Regulation and Administration) (Scotland) Act 2023 (“the Act”) into force.

Regulation 2(1), read with regulation 2(3) and the table in Part 1 of the schedule, appoints 1 April 2024 for the coming into force of sections 1, 6(1) and (5) (for a limited purpose), 8, 9, 12, 13(1) and (2) (for limited purposes) 14 to 18, 19 (for a limited purpose) and paragraphs 2 to 21 of the schedule of the Act.

Regulation 2(2), read with regulation 2(3) and the table in Part 2 of the schedule, appoints 1 October 2024 for the coming into force of sections 6(1) and (6) (for a limited purpose), 7, 19 (for remaining purposes) and paragraph 1 of the schedule of the Act.

Regulations 3 to 6 make transitional arrangements in connection with four of the provisions commenced by regulation 2. Regulations 7 and 8 make savings provision.

Regulation 3 relates to the commencement of section 8 (appointment of interim trustees by OSCR) and provides that any application for an acting trustee under section 70A(2) of the Charities and Trustee Investment (Scotland) Act 2005 (“the 2005 Act”) which is made before 1 April 2024, but which has not been determined by OSCR by that date, is to be treated as if it were an application for an interim trustee under section 70A(1) of the 2005 Act, as amended by section 8 of the Act.

Regulation 4 relates to the commencement of section 17 (ability to issue positive directions). It provides that new section 30B of the 2005 Act (inserted by section 17) will apply in relation to any inquiry of OSCR’s that is ongoing at the time section 17 comes into force. This means that OSCR may, at the conclusion of such an inquiry, issue a positive direction to a charity in exercise of the new power in section 30B.

Regulation 5 relates to the commencement of section 18 (charities which it is not appropriate for OSCR to regulate). It provides that the amendments made to section 5 (determination of applications) of the 2005 Act will apply in relation to any application for entry in the Scottish Charity Register before 1 April 2024, and which has not been determined by that date. This means that OSCR will be required to consider, as part of its determination of such an application, the applicant’s connection to Scotland, and it must refuse the applicant entry to the Register if it determines that the applicant will have no, or negligible, connection to Scotland.

Regulation 6 relates to the commencement of paragraph 5 of the schedule of the Act which amends section 11 (change of name) of the 2005 Act. It provides that where a charity has given OSCR notice of a proposed change of name under section 11(2); the 28-day period referred to in section 11(3) has not elapsed; and OSCR has not given the charity a direction that it must not change its name, section 11 will apply as amended, meaning that OSCR will be able to either refuse consent to the name change or direct the charity not to change its name for up to 6 months while it undertakes inquiries.

Regulation 7 provides that the commencement of section 16 (notice and obtaining information) has no bearing on a notice that has been issued by OSCR under section 29 of the 2005 Act before 1 April 2024.

Regulation 8 provides that the commencement of paragraph 10 (provision of documents) of the schedule has no bearing on a request for a charity’s constitution or latest statement of account made before 1 April 2024.

The Bill for the Act received Royal Assent on 9 August 2023. By virtue of section 21(1), that section, together with sections 20 and 22, came into force on 10 August 2023.