Charities and Trustee Investment (Scotland) Act 2005

42 Reorganisation: supplementary S

(1) This section applies for the interpretation of Chapter 5.

(2) The “reorganisation conditions” are—

(a) that some or all of the purposes of the charity—

(i) have been fulfilled as far as possible or adequately provided for by other means,

(ii) can no longer be given effect to (whether or not in accordance with the directions or spirit of its constitution),

(iii) have ceased to be charitable purposes, or

(iv) have ceased in any other way to provide a suitable and effective method of using its property, having regard to the spirit of its constitution,

(b) that the purposes of the charity provide a use for only part of its property, F1 ...

(c) that a provision of the charity's constitution (other than a provision setting out the charity's purposes) can no longer be given effect to or is otherwise no longer desirable,[F2 and

(d) that it is desirable to introduce a provision (other than a provision setting out a new purpose) to a charity's constitution.]

(3) A “reorganisation scheme” is a scheme for—

(a) variation of the constitution of the charity (whether or not in relation to its purposes),

(b) transfer of the property of the charity (after satisfaction of any liabilities) to another charity (whether or not involving a change to the purposes of the other charity), or

(c) amalgamation of the charity with another charity.

(4) Nothing in section 40 affects the power of the Court of Session to approve a cy près scheme in relation to a charity.

(5) Sections 39 and 40 do not apply to any charity constituted under a Royal charter or warrant or under any enactment.

[F3 (6) But, despite subsection (5), sections 39 and 40 apply—

(a) to any endowment held by such a charity,

(b) where the property of a charity constituted under an enactment consists only of an endowment or endowments, to the charity.

(7) Where an application for a reorganisation scheme is made by virtue of subsection (6)(a)—

(a) a reference in section 39(1)(a) or 40(1)(a) to a condition being satisfied in relation to a charity is to be read as a reference to a condition being satisfied in relation to an endowment,

(b) the reference in section 41 to a charity’s constitution is to be read as including a reference to an instrument governing an endowment,

(c) a reference in subsection (2) or (3)(a) to the purposes of a charity is to be read as a reference to the purposes of an endowment,

(d) a reference in subsection (2)(c) or (d) or (3)(a) to a charity’s constitution is to be read as a reference to—

(i) a charity’s constitution as it relates to an endowment,

(ii) an instrument governing an endowment,

(e) the references in subsection (3)(c) to a charity are to be read as references to an endowment.

(8) Where an application for a reorganisation scheme is made by virtue of subsection (6)(b), a reference in section 41 or in subsection (2)(c) or (d) or (3)(a) to a charity’s constitution is to be read as including a reference to an instrument governing an endowment.

(9) For the purposes of subsections (6) to (8)—

(a) “endowment” has the same meaning as in Part 6 (reorganisation of endowments) of Education (Scotland) Act 1980,

(b) for the avoidance of doubt, income derived from an endowment is to be treated as being part of the endowment.

(10) The Scottish Ministers may by regulations—

(a) modify this section so as to amend the meaning of “endowment”,

(b) disapply subsection (6) in relation to any charity or endowment, or type of charity or endowment, specified in the regulations.]

Textual Amendments

F1 Word in s. 42(2) repealed (1.8.2010) by Public Services Reform (Scotland) Act 2010 (asp 8), ss. 124(3)(a), 134(7); S.S.I. 2010/221, art. 3(2), Sch.

F2 S. 42(2)(d) inserted (1.8.2010) by Public Services Reform (Scotland) Act 2010 (asp 8), ss. 124(3)(b), 134(7); S.S.I. 2010/221, art. 3(2), Sch.

F3 S. 42(6)-(10) substituted for s. 42(6)(7) (1.4.2024) by Charities (Regulation and Administration) (Scotland) Act 2023 (asp 5), ss. 14(2), 21(2); S.S.I. 2024/63, reg. 2(1), sch. Pt. 1

Commencement Information

I1 S. 42 in force at 31.5.2007 by S.S.I. 2007/117, art. 2(2)