Statutory Instruments
Charities, England And Wales
Made
27th February 2010
Coming into force in accordance with article 1
This Order is made in exercise of the powers conferred by sections 11(11) and (13), 74(2) and (7) and 78(6) of the Charities Act 2006(1).
In so far as this Order makes provision to secure that, in so far as they are charities, institutions or institutions of a particular description become or cease to be exempt charities, the Minister for the Cabinet Office is satisfied, in accordance with section 11(12) of that Act, that this Order is desirable in the interests of ensuring appropriate or effective regulation of those charities in connection with compliance by their charity trustees with their legal obligations in exercising control and management of the administration of those institutions.
A draft of this Order has been laid before Parliament in accordance with section 74(5) of that Act and approved by resolution of each House of Parliament.
Accordingly, the Minister for the Cabinet Office makes the following Order:
1. This Order may be cited as the Charities Act 2006 (Changes in Exempt Charities) Order 2010 and comes into force immediately after section 11(3) of the Charities Act 2006 comes into force.
2.—(1) Schedule 2 to the 1993 Act (exempt charities)(2) is amended as follows.
(2) For paragraph (b) substitute—
“(b)the universities of Oxford, Cambridge, London, Durham, Newcastle and Manchester, and King’s College London and Queen Mary and Westfield College in the University of London;”.
(3) For paragraph (c) substitute—
“(c)any of the following if Her Majesty declares it by Order in Council to be an exempt charity for the purposes of this Act—
(i)a university in England;
(ii)a university college in England; or
(iii)an institution which is connected with a university in England or a university college in England;
(but see Note 1A);”.
(4) In paragraph (h) for “a higher” substitute “an English higher”.
(5) For paragraph (i) substitute—
“(i)a successor company to a higher education corporation (within the meaning of subsection (5) of section 129 of the Education Reform Act 1988(3)) at a time when the institution conducted by the company is eligible, by virtue of an order made under that section, to receive support from funds administered by the Higher Education Funding Council for England;”.
(6) Omit paragraph (z).
(7) In paragraph (za) after “Board” insert “and any institution which is administered by or on behalf of the Board and is established for the general purposes of, or for any special purpose of or in connection with, the Board”.
(8) After Note 1 insert—
“1A. Paragraph (c) above does not include—
(a)any college in the university of Oxford;
(b)any college or hall in the university of Cambridge or Durham;
(c)any students’ union.”.
(9) For Note 2 substitute—
“2. Paragraph (w) above does not include—
(a)any college in the university of Oxford which is administered by or on behalf of that university;
(b)any college or hall in the university of Cambridge or Durham which is administered by or on behalf of that university;
(c)any students’ union.”.
(10) After Note 2 insert—
For the purposes of this Schedule—
(a)a university or university college is in England if its activities are carried on, or principally carried on, in England;
(b)the Open University is to be treated as a university in England;
(c)a higher education corporation is an English higher education corporation if the activities of the institution conducted by that corporation are carried on, or principally carried on, in England.”.
3.—(1) Schedule 1 (which contains consequential amendments, repeals and revocations) has effect.
(2) Schedule 2 (which contains transitional and transitory provisions and savings) has effect.
Angela E. Smith
Minister of State
Cabinet Office
27th February 2010
Article 3(1)
1. Section 7(1) of the Welsh Church (Temporalities) Act 1919 (provisions as to charities)(4) is repealed.
2. Section 18 of the King’s College London Act 1978 (King’s College to be an exempt charity)(5) is repealed.
3. In section 125A of the Education Reform Act 1988 (charitable status of a higher education corporation)(6) for the words from “(and in accordance” to the end of the section substitute—
“and—
(a)an English higher education corporation is, in accordance with Schedule 2 to that Act, an exempt charity for the purpose of that Act; and
(b)a Welsh higher education corporation is, in accordance with regulations made under section 3A(4)(b) of that Act(7), excepted from registration under that Act.”.
4.—(1) The 1993 Act(8) is amended as follows.
(2) After section 36(9)(a) (dispositions to which section 36 does not apply) insert—
“(aa)to any disposition for which the authorisation or consent of the Secretary of State is required under the Universities and College Estates Act 1925(9); or”.
(3) In section 37(1)(ii) (supplementary provisions relating to dispositions) after “paragraph (a),” insert “(aa),”.
(4) In section 38(5) (mortgages to which section 38 does not apply) after “above” insert “or for which the authorisation or consent of the Secretary of State is required as mentioned in section 36(9)(aa) above”.
5. Section 11 of the University of Manchester Act 2004 (University to be an exempt charity)(10) is repealed.
6. In the Schedule to the Exempt Charities Order 1962(11), omit—
(a)“University of Wales”;
(b)“University College of Wales, Aberystwyth”;
(c)“University College of North Wales”;
(d)“University College of South Wales and Monmouthshire”;
(e)“University College of Swansea”;
(f)the heading “Institutions connected with the University of Wales”;
(g)“Welsh National School of Medicine”.
7. In the Schedule to the Exempt Charities Order 1965(12) omit “St David’s College, Lampeter”.
8. The Exempt Charities Order 1984(13) is revoked.
9.—(1) Rule 180 of the Land Registration Rules 2003 (statements to be contained in dispositions by a charity)(14) is amended as follows.
(2) In paragraph (1)(b) and (c) for “paragraph (a), (b) or (c)” substitute “paragraph (a), (aa), (b) or (c)”.
10.—(1) Regulation 2 of the Charities (Accounts and Reports) Regulations 2008(15) is amended as follows.
(2) In paragraph (1) in the definition of “special case charity”—
(a)omit “and” at the end of sub-paragraph (b)(iii); and
(b)after sub-paragraph (b) insert—
“(c)a charity which is a college or hall in the University of Cambridge;
(d)a charity which was an exempt charity by virtue of an Order in Council made under paragraph (c) of Schedule 2 to the 1993 Act but ceased to be so when that Order was amended or revoked by the Charities Act 2006 (Changes in Exempt Charities) Order 2009;
(e)a charity which is a Welsh higher education corporation;”.
(3) After paragraph (1) insert—
“(1A) For the purposes of these Regulations, a higher education corporation is a “Welsh higher education corporation” if the activities of the institution conducted by that corporation are carried on, or principally carried on, in Wales.”.
Article 3(2)
1. Part 6 of and Schedule 5A to the 1993 Act (Charity Accounts, Reports and Returns)(16) continue to apply to a new exempt charity in relation to any financial year of the charity which began before the appointed day as if the charity had not become an exempt charity.
2. Where a new exempt charity is not required by or under the authority of any Act other than the 1993 Act to prepare periodical statements of account, the first statement of account which the charity produces under section 46(1) of the 1993 Act must relate to a period of not more than 15 months beginning on the day immediately following the last day of the current financial year.
3. Subsections (1) and (2) of section 46 of the 1993 Act continue to apply to a formerly exempt charity in relation to—
(a)the current financial year of that charity; and
(b)the books of accounts and statements of account prepared in respect of any financial year of the charity which began before the appointed day.
4. The Charity Commission may not require, under section 46(5) of the 1993 Act, the charity trustees of a formerly exempt charity to prepare an annual report in respect of the current financial year of the charity.
5.—(1) Where a qualifying request is made, the accounts to be treated as the most recent accounts of the formerly exempt charity are the accounts specified in sub-paragraph (2).
(2) The specified accounts are—
(a)the accounts of the charity most recently audited in pursuance of any statutory or other requirement; or
(b)if its accounts were not required to be so audited, the accounts most recently prepared in respect of that charity.
(3) In this paragraph, “qualifying request” means a request made under section 47(2) of the 1993 Act for the most recent accounts of a formerly exempt charity at any time before—
(a)in the case of a formerly exempt charity which is a company, the charity trustees of that charity have prepared an annual report under section 45 of that Act in respect of the financial year of the charity beginning immediately after the current financial year; or
(b)in any other case, the charity trustees of that charity have prepared—
(i)a statement of accounts under section 42(1) of that Act; or
(ii)an account and statement under section 42(3) of that Act,
in respect of the financial year of the charity beginning immediately after the current financial year.
6.—(1) The Charity Commission may for the purpose of any relevant inquiry continue to treat a new exempt charity as if it had not become an exempt charity.
(2) The Charity Commission must notify the principal regulator of the relevant exempt charity of any decision to continue any inquiry with regard to that charity.
(3) In this paragraph “relevant inquiry” means, in relation to a new exempt charity, an inquiry which was instituted under section 8 of the 1993 Act—
(a)before the appointed day; and
(b)with regard to that charity or a class of charities into which it falls.
7.—(1) The Charity Commission may take any action, on or after the appointed day, in relation to—
(a)a new exempt charity which is or was the subject of a relevant inquiry; or
(b)the charity trustees of such a charity,
that it could take under the 1993 Act in relation to a charity which is not an exempt charity or (as the case may be) the charity trustees of a charity that is not an exempt charity.
(2) The Charity Commission must notify the principal regulator of the relevant new exempt charity of any action taken in reliance on sub-paragraph (1) above.
(3) In this paragraph “relevant inquiry” has the meaning given by paragraph 6.
8.—(1) Section 36 of the 1993 Act continues to apply to a relevant disposition of land held by or in trust for a new exempt charity as it applies to a disposition of land held by or in trust for a charity which is not an exempt charity.
(2) A disposition of land held by or in trust for a new exempt charity is a “relevant disposition” if—
(a)the charity trustees proposed that the land in question be disposed of (whether by conveyance, transfer, lease or otherwise) before the appointed day; but
(b)the relevant disposition had not been effected before that day.
9.—(1) Section 38 of the 1993 Act continues to apply to a relevant mortgage of land held by or in trust for a new exempt charity as it applies to a mortgage of land held by or in trust for a charity which is not an exempt charity.
(2) A mortgage of land held by or in trust for a new exempt charity is a “relevant mortgage” if the charity trustees—
(a)proposed that the mortgage be executed before the appointed day; but
(b)had not executed it before that day.
(3) For the purposes of sub-paragraph (2) it does not matter whether the mortgage—
(a)will only have effect to secure the repayment of sums paid by way of the proposed loan or grant or discharge of the proposed obligation; or
(b)will also have effect to secure the repayment of sums paid by way of loan or grant, or the discharge of other obligations undertaken, after the date of its execution.
(4) In this paragraph “mortgage” has the meaning given by section 38 of the 1993 Act.
10.—(1) Subject to sub-paragraph (2), the Charity Commission must not instigate any inquiry under section 8 of the 1993 Act on or after the appointed day—
(a)in relation to one or more formerly exempt charities and in respect of any period beginning before that day; or
(b)which covers any period beginning before the appointed day and would extend to one or more formerly exempt charities.
(2) The Charity Commission may, if it considers it appropriate to do so, instigate an inquiry under section 8 of the 1993 Act on or after the appointed day into a formerly exempt charity in respect of a matter—
(a)arising before the appointed day but during the current financial year of the charity; and
(b)of which it becomes aware on or after the appointed day.
11. Where immediately before the appointed day a formerly exempt charity was preparing or promoting a Bill in Parliament, section 17(7) of the 1993 Act continues to apply in respect of any expenditure incurred on or after that day in the preparation or promotion of that Bill as if the relevant charity remained an exempt charity.
12.—(1) Any charity proceedings —
(a)relating to a formerly exempt charity; and
(b)taken before the appointed day,
continue on or after that day as if they had been authorised by the Charity Commission.
(2) In this paragraph “charity proceedings” has the meaning given by section 33(8) of the 1993 Act.
13.—(1) Nothing in section 36 of the 1993 Act applies to a disposition of land held by or in trust for a formerly exempt charity to which sub-paragraph (2) applies.
(2) This sub-paragraph applies to a disposition of land held by or in trust for a formerly exempt charity if—
(a)the charity trustees proposed that the relevant land be disposed of (whether by conveyance, transfer, lease or otherwise) before the appointed day; but
(b)the relevant disposition had not been effected before that day.
14.—(1) Nothing in section 38 of the 1993 Act applies to a mortgage of land held by or in trust for a formerly exempt charity to which sub-paragraph (2) applies.
(2) This sub-paragraph applies to a mortgage of land held by or in trust for a formerly exempt charity if the charity trustees—
(a)proposed that the mortgage be executed before the appointed day; but
(b)had not executed it before that day.
(3) For the purposes of sub-paragraph (2) it does not matter whether the mortgage—
(a)will only have effect to secure the repayment of sums paid by way of the proposed loan or grant or discharge of a proposed obligation; or
(b)will also have effect to secure the repayment of sums paid by way of loan or grant, or the discharge of other obligations undertaken, after the date of its execution.
(4) In this paragraph “mortgage” has the meaning given by section 38 of the 1993 Act.
15.—(1) The Commission may not make any order under section 73(4) of the 1993 Act which would require a person (“P”) to—
(a)repay to a formerly exempt charity the whole or part of any relevant sums received by P by way of remuneration or expenses; or
(b)pay to that charity the whole or part of the monetary value of any relevant benefit in kind received by P.
(2) For the purposes of this paragraph—
(a)a sum by way of remuneration or expenses or a benefit in kind received by P is a relevant sum or benefit in kind if it is received by P in connection with P’s acting as charity trustee of or trustee for the formerly exempt charity at any time—
(i)before the appointed day; and
(ii)when P was disqualified by section 72 of the 1993 Act for acting as such a trustee;
(b)it does not matter whether—
(i)the sums received by P by way of remuneration or expenses are; or
(ii)the benefit in kind received by P is,
received by P before, on or after the appointed day.
16.—(1) The commencement of this Order—
(a)does not affect—
(i)any proceedings brought in any court or to the Tribunal in respect of any decision, order or direction made or any other matter arising before the appointed day;
(ii)any order made or judgment given in any proceedings mentioned in sub-paragraph (i) whether that order is made or judgment given before, on or after the appointed day;
(b)does not affect the validity of anything done before the appointed day on the basis that—
(i)a formerly exempt charity was an exempt charity; or
(ii)a new exempt charity was not an exempt charity;
(c)does not require—
(i)any formerly exempt charity to be treated as not having been an exempt charity;
(ii)any new exempt charity to be treated as having been an exempt charity,
at any time before the appointed day.
(2) In this paragraph “Tribunal” has the meaning given by section 97(1) of the 1993 Act(17).
17. The 1993 Act has effect as if the reference in section 24(8) of that Act to “a scheme which admits only exempt charities” were a reference to a scheme which admits—
(a)only exempt charities;
(b)only exempt charities and formerly exempt charities; or
(c)only formerly exempt charities.
18. In this Schedule—
(a)“appointed day” means the day appointed for the commencement of section 11(3) of the Charities Act 2006;
(b)“current financial year” means, in relation to a charity, a financial year which—
(i)began before the appointed day; but
(ii)ends on or after that day;
(c)“financial year” has the meaning given by section 97(1) of the 1993 Act;
(d)“formerly exempt charity” means a charity which—
(i)ceased to be an exempt charity, on the appointed day, or
(ii)is one of a particular description of charities which ceased to be exempt charities on that day,
by virtue of a provision of this Order;
(e)“new exempt charity” means a charity which becomes an exempt charity, on or after the appointed day, by virtue of article 2(7) of this Order;
(f)“principal regulator” has, in relation to an exempt charity, the meaning given by section 13 of the Charities Act 2006.
(This note is not part of the Order)
The Minister for the Cabinet Office (“the Minister”) has the power, under section 11 of the Charities Act 2006, to amend Schedule 2 to the Charities Act 1993 to confer exempt charity status on a particular charity or class of charities or remove that status from a particular charity or class of charities. The Minister may also amend that Schedule so as to remove institutions which have ceased to exist.
This Order confers exempt charity status on certain charities connected with the British Library Board (article 2(7)).
It also removes exempt charity status from, in so far as they are charities, the following institutions or descriptions of institution;
(a)the colleges and halls in the universities of Cambridge and Durham;
(b)the colleges in the university of Oxford;
(c)higher education corporations in Wales;
(d)universities and university colleges in Wales and institutions connected with them which were designated as exempt charities before the appointed day;
(e)successor companies to higher education corporations which conduct institutions in Wales;
(f)charitable institutions connected to institutions mentioned in paragraphs (a) to (e) above which were, immediately prior to the appointed day, exempt charities; and
(g)the Board of Governors of the Museum of London
(article 2(1) to (6)).
This Order also further amends Schedule 2 to the Charities Act 1993 so as to remove the references to the colleges and halls in the university of Newcastle and the halls in the university of Oxford as these institutions have ceased to exist.
The Order also further amends Schedule 2 to the Charities Act 1993 to refer specifically to King’s College London and the University of Manchester (article 2(2)). These amendments have been made to ensure that the students’ unions of these institutions cease to be exempt charities. The College and the University are themselves, in so far as they are charities, currently exempt charities and this status is not affected by the additional amendment to Schedule 2 or the repeal of section 18 of the King’s College London Act 1978 or section 11 of the University of Manchester Act 2004.
In accordance with the duty in section 3A of the Charities Act 1993 the Minister has made regulations which except, subject to the financial threshold in subsection (2)(c) of that section, the institutions ceasing to be exempt charities in consequence of a provision of this Order, from the requirement to be registered in the register of charities maintained by the Charity Commission for England and Wales (The Charities (Exception from Registration) Regulations 2010 (S.I. 2010/502).
This Order also makes related consequential amendments and transitional provisions and savings (article 3 and Schedules 1 and 2).
A full regulatory impact assessment of the effect of changes proposed in relation to exempt charities was produced alongside the Bill which became the Charities Act 2006. This regulatory impact assessment took into account the effect of most of the changes being made by article 2 of this Order.
A copy of this regulatory impact assessment is available from the Office of the Third Sector’s website:
http://www.cabinetoffice.gov.uk/third_sector/law_and_regulation/charities_act_2006/background.aspx
or from Khaled Moyeed at the Office of the Third Sector, Room 2.7 Admiralty Arch South Side, The Mall, London, SW1A 2WH (020 7276 6028 or Khaled.Moyeed@cabinet-office.x.gsi.gov.uk). It is also annexed to the Explanatory Memorandum which is available alongside the Order on the OPSI website (http://www.opsi.gov.uk).
2006 c.50. There are amendments to the 2006 Act not relevant to this Order.
1993 c.10. Schedule 2 was amended by the National Lottery Act 1993 (c.39), Schedule 5, paragraph 12; by the Education Act 1996 (c.56), Schedule 38; by the Education Act 1997 (c.44), Schedule 7, paragraph 7; by the School Standards and Framework Act 1998 (c.31), Schedule 31; by the Teaching and Higher Education Act 1998 (c.30), Schedule 4; by S.I. 2005/3239, Schedule 1, paragraph 4; by the National Lottery Act 2006 (c.23), Schedule 3; by the Apprenticeships, Skills, Children and Learning Act 2009 (c.22), Schedule 12, paragraph 8 (the amendments made by the 2009 Act are not yet in force) and by the Charities Act 2006, section 11 and Schedule 8, paragraph 177 (not all of the amendments made by section 11 of the 2006 Act are in force).
1988 c.40. Section 129 was amended by the Further and Higher Education Act 1992 (c.13), section 72 and Schedule 9. There are other amendments to the 1988 Act not relevant to article 2(5) of this Order.
1988 (c.40). Section 125A was inserted by the Teaching and Higher Education Act 1998 (c.30), section 41. It was substituted by the Charities Act 2006, Schedule 8, paragraph 85.
Section 3A of the Charities Act 1993 was inserted by the Charities Act 2006, section 9. Section 3A was amended by S.I. 2006/2951, Schedule, paragraph 4(d).
There are amendments to sections 36 to 38 of the 1993 Act which are not relevant to this Order.
1925 c. 24. There are amendments to the 1925 Act which are not relevant to this Order.
S.I. 2003/1417. There are amendments to the Rules which are not relevant to this Order.
Part 6 of the Charities Act 1993 comprises sections 41 to 49A of that Act. Section 41 was amended by the Charities Act 2006, Schedule 8, paragraph 132. Section 42 was amended by the Charities Act 2006, Schedule 8, paragraph 133, by S.I. 2006/2951, Schedule, paragraph 4(q), and by S.I. 2009/508, article 9. Section 43 was amended by S.I. 2005/1074, article 3, by the Charities Act 2006, section 28 and Schedule 8, paragraph 134, by S.I. 2008/527, article 2, by S.I. 2008/948, Schedule 1, paragraphs 17 and 192, and by S.I. 2009/508, article 10. Section 43A was inserted by S.I. 2005/1074, article 3. Section 43A was amended by the Charities Act 2006, Schedule 8, paragraph 135, by the National Health Service (Consequential Provisions) Act 2006 (c.43), Schedule 1, paragraph 161, and by the Local Government and Public Involvement in Health Act 2007 (c.28), Schedule 9, paragraph 1, and Schedule 18. Section 43B was inserted by S.I. 2005/1074, article 3. Section 43B was amended by the Charities Act 2006, Schedule 8, paragraph 136 and by the National Health Service (Consequential Provisions) Act 2006, Schedule 1, paragraph 162. Section 44 was amended by the Charities Act 2006, Schedule 8, paragraph 137, by S.I. 2008/527, article 3 and by S.I. 2008/948, Schedule 1, paragraph 192. Section 44A was inserted by the Charities Act 2006, section 29. Section 45 was amended by the Deregulation and Contracting Out Act 1994 (c.40), section 29, by S.I. 2005/1074, article 3, by the Charities Act 2006, Schedule 7, paragraph 4, and Schedule 8, paragraph 138 (the amendments made by Schedule 7 are not yet in force), by S.I. 2006/2951, Schedule, paragraph 4(t), by S.I. 2008/527, article 4, by S.I. 2008/948, Schedule 1, paragraph 192, and by S.I. 2009/508, article 11. Section 46 was amended by S.I. 2005/1074, article 3 and by the Charities Act 2006, section 29 and Schedule 8, paragraph 139 (some of the amendments made by paragraph 139 are not yet in force). Section 47 was amended by S.I. 1994/1935, Schedule 1, paragraph 7, the Deregulation and Contracting Out Act 1994, Schedule 11, paragraph 12, and Schedule 17, by the Charities Act 2006, Schedule 8, paragraph 140, by S.I. 2008/527, article 5, and by S.I. 2008/948, Schedule 1, paragraph 192. Section 48 was amended by the Deregulation and Contracting Out Act 1994, section 30, by the Charities Act 2006, Schedule 7, paragraph 5, and Schedule 8, paragraph 141 (the amendments made by Schedule 7 are not yet in force) and by S.I. 2006/2951, Schedule, paragraph 4(u). Section 49 was substituted by the Charities Act 2006, Schedule 8, paragraph 142. Section 49A was inserted by the Charities Act 2006, section 30. Schedule 5A to the Charities Act 1993 was inserted by the Charities Act 2006, Schedule 6. Schedule 5A was amended by S.I. 2008/527, article 8 and by S.I. 2008/948, Schedule 1, paragraph 192.
The definition of “Tribunal” in section 97(1) of the Charities Act 1993 was amended by the Transfer of Functions of the Charity Tribunal Order 2009 (S.I. 2009/1834).