2011 No. 1396
The Charities (Pre-consolidation Amendments) Order 2011
Made
Coming into force in accordance with article 1
This Order is made in exercise of the powers conferred by sections 74(2) and (7), 76 and 78(6) of the Charities Act 20061.
The Minister for the Cabinet Office is satisfied that the amendments made by this Order will facilitate, or are otherwise desirable in connection with, the consolidation of enactments relating to charities2.
A draft of this Order has been laid before Parliament in accordance with section 74(4) and (5) of that Act and approved by resolution of each House of Parliament.
Accordingly, the Minister makes the following Order:
Citation and commencement1
This Order may be cited as the Charities (Pre-consolidation Amendments) Order 2011 and comes into force (in accordance with section 76(3) of the Charities Act 2006) immediately before the Charities Act 2011 comes into force.
Amendments of enactments relating to charities2
1
The Schedule (which contains amendments of enactments relating to charities) has effect.
2
Subject to paragraph (3), any amendment made by the Schedule has the same extent as the provision amended.
SCHEDULEAMENDMENTS OF ENACTMENTS RELATING TO CHARITIES
PART 1AMENDMENTS OF RECREATIONAL CHARITIES ACT 1958 (c. 17)
1
In section 1(1) of the Recreational Charities Act 19585, for “the principle that a trust or institution to be charitable must be for the public benefit” substitute “the requirement in section 2(1)(b) of the Charities Act 2006 that a purpose falling within section 2(2) of that Act must be for the public benefit if it is to be a charitable purpose”.
2
Omit section 3(1) of that Act6.
3
Omit section 5 of that Act.
PART 2AMENDMENTS OF CHARITIES ACT 1993 (c. 10)
4
In section 1A(4) of the Charities Act 19937, for “other” substitute “of another”.
5
In section 2(1) of that Act8 for “by that name a corporation sole having perpetual succession and using an official seal which” substitute “a corporation sole whose official seal”.
6
In section 3A of that Act9—
a
in subsection (4)(c) after “any” insert “charity or”;
b
for paragraph (c) of subsection (11) and the word “and” preceding that paragraph substitute—
c
subsections (6)(a) and (7)(a),
d
in subsection (8), paragraph (a) and the words following paragraph (b),
e
subsection (9), and
f
this subsection,
7
1
In the following provisions of that Act, for “furnish” substitute “provide”—
a
section 8(3)(a) and (b)10;
b
section 9(1)(a) and (b)(i) and (4)11;
c
section 28(9)12;
d
section 8413.
2
In the following provisions of that Act, for “furnished” substitute “provided”—
a
section 9(3)14;
b
section 31A(2)(b) and (c)15.
3
In the following provisions of that Act, for “furnishing” substitute “provision”—
a
section 85(1)(b)16;
b
section 97(2)(a) and (b).
4
Any regulations made or having effect as if made under section 85 of that Act are to be read as if any reference in the regulations to the furnishing of a document were a reference to the provision of the document.
8
1
In section 14(5)(c) of that Act, for “such claim” substitute “claims made in accordance with paragraph (b)”.
2
In section 14(6)(a) of that Act17, for “any such claims” substitute “claims made in accordance with subsection (5)(b)”.
9
In section 14B of that Act18, after subsection (6) insert—
7
In this section references to the original purposes of a gift are to be read, where the application of the property given has been altered or regulated by a scheme or otherwise, as referring to the purposes for which the property is for the time being applicable.
10
1
In section 17(2) of that Act19, omit “and a draft of the order shall be laid before Parliament”.
2
After section 17(2) of that Act insert—
2A
Subject to subsections (3) and (5), an order under subsection (2) is subject to annulment in pursuance of a resolution of either House of Parliament.
3
In section 17(3) of that Act—
a
omit “Without prejudice to the operation of section 6 of the Statutory Instruments Act 1946 in other cases,”, and
b
for “the order shall not be made unless the draft has been approved by” substitute “no order may be made unless a draft of the order has been laid before and approved by a”.
11
1
In section 18(12) of that Act20, for “under this section otherwise than by virtue of subsection (1)” substitute “by virtue of subsection (2), (4) or (5)”.
2
In section 22(3) of that Act21, for “section 18” substitute “section 18(1)(iii)”.
12
1
In section 20(2)(b) of that Act22, for “to the parish or community council (or, where a parish has no council, to the chairman of the parish meeting)” substitute “to—
i
the parish council or, if the parish has no council, the chairman of the parish meeting, or
ii
the community council or, if the community has no council, the council of the county or the county borough.”.
2
In section 79(7) of that Act23, in paragraph (a) for “for references in subsections (1) and (2)” substitute “for references in subsection (1)” and after paragraph (a) insert—
aa
for references in subsection (2)24 to a parish, a parish council or a parish meeting there shall be substituted respectively references to a community, a community council or the council of the county or (as the case may be) county borough;
13
In section 22(1) of that Act, after “orders of the court” insert “in the same way”.
14
In section 26(3) of that Act—
a
for “thereby authorised” substitute “authorised by the order”, and
b
for “therewith” substitute “with that authority”.
15
In section 36(4)(a) of that Act25, omit “or of the Incorporated Society of Valuers and Auctioneers”.
16
In section 39(1) of that Act26, for “registered disposition” substitute “registrable disposition”.
17
1
In section 43(1) of that Act27, for “£100,000 or such other sum as is” substitute “the sum”.
2
In section 43(9) of that Act28, for “, of a charity for a financial year” substitute “for a financial year of a charity which is a company”.
18
In section 43A(5) of that Act29, for “Commission” substitute “Charity Commission”.
19
1
In section 57(1) of that Act30, for “and shall preserve all documents sent to it under this Part of this Act” substitute “and documents sent to the Commission under this Part shall be kept by the Commission for such period as it thinks fit”.
2
For section 57(2) of that Act substitute—
2
Documents kept under this section are to be open to public inspection at all reasonable times; and any person who is provided with a copy or extract of any document kept under this section may require it to be certified by a certificate signed by a member of the staff of the Commission.
20
In section 69I(3)(b) of that Act31, for “register of friendly societies” substitute “mutual societies register”.
21
In section 69M(5) of that Act32, after “The resolution” insert “of the transferor CIO”.
22
1
In section 73D of that Act33—
a
in subsection (1)(c) omit “, reporting accountant”;
b
in subsection (5)—
i
in paragraph (a) for “section 43B above”, and
ii
in paragraph (b) for “that section”,
substitute “Part 6 (including Schedule 5A)34”.
2
Nothing in sub-paragraph (1)(a) affects the operation of sections 73D and 73E35 of the 1993 Act in relation to a person who is, or has been, a reporting accountant appointed to examine or report on a charity’s accounts relating to a financial year beginning before 1st April 2008.
23
In section 74B(11) of that Act36, for “any reference to any obligation imposed on the charity trustees by or under section 74 includes” substitute “the references in sections 74(8)(b) and 74A(2) to any obligation imposed on the charity trustees by or under section 74 include”.
24
1
In section 79(2) of that Act, omit “, ratepayers”.
2
Nothing in sub-paragraph (1) affects any appointment of a charity trustee made before the commencement of that sub-paragraph.
3
Where, immediately before the commencement of sub-paragraph (1)—
a
the charity trustees of a parochial charity included one or more persons elected by ratepayers, or
b
the sole charity trustee of a parochial charity was elected by ratepayers,
then, on and after the commencement of that sub-paragraph, section 79(2) of that Act has effect in relation to that parochial charity as if the person or persons so elected had been elected by the local government electors.
25
In section 80(1) of that Act37, after “in relation to a charity” insert “; and for the purposes of section 31A(10) as it has effect by virtue of this subsection, the reference in section 31A(10)(b) to the charity trustees of the charity is to be read as a reference to the persons having the general control and management of the administration of the recognised body”.
26
In section 82 of that Act—
a
in subsection (1), for “assurances or other deeds or instruments” substitute “documents”, and
b
in subsections (1), (2)(a), (3) and (4) for “deed or instrument” substitute “document”.
27
In section 84 of that Act38, for “open to inspection under Parts II to VI of this Act or section 75D” substitute “open to or available for inspection under any provision of this Act”.
28
Section 86(3) of that Act39 has effect, except for the purposes of section 2B(9) of that Act40, subject to the following amendments—
a
in paragraph (a), after “cases” insert “or descriptions of case or different purposes or areas”, and
b
in paragraph (b), after “consequential” insert “, transitory”.
29
In section 89 of that Act41—
a
in subsection (2), omit “(without prejudice to the requirements of this Act where the order is subject to appeal)”; and
b
in subsection (5), after “so made” insert “and may include transitional provisions or savings”.
30
In the definition of “financial year” in section 97(1) of that Act42, for the words following paragraph (b) substitute “but this is subject to any provision of regulations made by virtue of paragraph 3(5) of Schedule 5A to this Act (financial years of subsidiary undertakings).”.
31
In the Table in Schedule 1C to the 1993 Act43—
a
in the first entry relating to section 56(4) of the 1993 Act, in column 1, omit “of a charity”;
b
in the entry relating to section 61(1) or (2) of that Act—
i
in column 1 omit “a charity which is”; and
ii
in column 2 omit “(b) the charity itself”;
c
in each of the entries relating to section 50(1), 56(4) and 61(1) or (2) of that Act, in column 2, after “trustees of the charity” insert “(within the meaning of section 62 of this Act)”;
d
for the entry relating to section 69(4) of that Act substitute—
1
2
3
Order made by the Commission under section 69(4) of this Act44 in relation to a charity which is a company, or a decision of the Commission not to make such an order in relation to such a charity.
The persons are—
- a
the charity trustees of the charity,
- b
the charity itself,
- c
in the case of a decision not to make an order, the auditor, and
- d
any other person who is or may be affected by the order or the decision.
Power to—
- a
quash the order or decision and (if appropriate) remit the matter to the Commission;
- b
substitute for the order any other order of a kind the Commission could have made;
- c
make any order which the Commission could have made.
e
in—
i
the second entry relating to section 69E of that Act, in column 1,
ii
the entry relating to section 69H of that Act, in column 1, and
iii
the second entry relating to section 69K of that Act45, in column 1,
for “not to grant” substitute “to refuse”;
f
in the second entry relating to section 69M(1) of that Act, in column 1, for “not to confirm” substitute “to refuse to confirm”;
g
after the entry relating to section 96(5) or (6) of that Act46 insert—
1
2
3
Order made by the Commission under paragraph 6(5), or by virtue of paragraph 7(2), of Schedule 5A to this Act requiring the group accounts of a parent charity to be audited.
The persons are—
- a
the charity trustees of the parent charity,
- b
(if a body corporate) the parent charity itself, and
- c
any other person who may be affected by the order.
Power to—
- a
quash the order;
- b
substitute for the order any other order which could have been made by the Commission;
- c
add to the order anything which would have been contained in an order made by the Commission.
Order made by the Commission by virtue of paragraph 8(4) of Schedule 5A to this Act in relation to a member of a group, or a decision of the Commission not to make such an order in relation to a member of a group.
The persons are—
- a
the charity trustees of the member of the group,
- b
(if a body corporate) the member of the group itself,
- c
in the case of a decision not to make an order, the auditor, independent examiner or examiner, and
- d
any other person who is or may be affected by the order or the decision.
Power to—
- a
quash the order or decision and (if appropriate) remit the matter to the Commission;
- b
substitute for the order any other order of a kind the Commission could have made;
- c
make any order which the Commission could have made.
32
In Schedule 3 to that Act47, in column 2, in paragraphs 1, 2(iii), 3, 3A, 4(iii) and 4A(iii), for “comprising” substitute “which includes” and in paragraphs 5 and 6, for “comprising or adjacent to the area in column 1” substitute “which—
i
includes, or include, the area in column 1, or
ii
is, or are, adjacent to the area in column 1”.
33
In Schedule 5A to that Act—
a
at the end of paragraph 6(7) insert “; and references in this Act to an auditor have effect in relation to sub-paragraph (4)(c) as references to the Auditor General for Wales acting under sub-paragraph (4)(c) as an auditor.”;
b
in paragraph 8—
i
in sub-paragraph (2)(e), for “or those applied” substitute “or of section 43(3) of this Act as applied”;
ii
at the end of sub-paragraph (4) insert “and for this purpose the reference in section 44(2)(b) to the charity trustees for the time being of the charity concerned is to be construed as a reference to the charity trustees for the time being of such member of the group as the Commission thinks appropriate.”; and
c
in paragraph 9(1) omit “and (7)”.
34
For the avoidance of doubt, in Schedule 7 to that Act, the reference to section 10 of the Universities of Durham and Newcastle-upon-Tyne Act 196348 is to be read as being, and as always having been, a reference to section 18 of the 1963 Act.
PART 3AMENDMENTS OF CHARITIES ACT 2006 (c. 50)
35
In section 74(4)(a) and (6) of the Charities Act 2006, for “section 11” substitute “section 11(11)(a) or (b) or (13)”.
PART 4AMENDMENTS RELATING TO THE MEANING OF “CHARITY”
36
In—
a
sections 5A(7)(a) and 7D(5)(a) of the Industrial and Provident Societies Act 196549, and
b
paragraph 2 of Schedule 5 to the Reserve Forces Act 199650,
for “as in the Charities Act 1993” substitute “as it has under section 1(1) of the Charities Act 2006”.
37
1
In the provisions listed in sub-paragraph (2), omit “within the meaning of the Charities Act 1993”.
2
The provisions are—
a
section 1(3A) of the Leasehold Reform Act 196751;
b
section 5(3)(f) of the Rent (Agriculture) Act 197652;
c
section 15(2)(b) of the Rent Act 197753;
d
Grounds 6 and 14A of Schedule 2 to the Housing Act 198854;
e
paragraph 1(4)(a) of Schedule 3A to the Environmental Protection Act 199055;
f
section 33M of the Further and Higher Education Act 199256;
g
section 5(2) of the Leasehold Reform, Housing and Urban Development Act 199357;
h
the definition of “charitable housing trust” in section 158(1) of the Housing Act 199658.
38
In—
a
section 4A(6) of the Friendly and Industrial and Provident Societies Act 196859, and
b
section 32A(6) of the Friendly Societies Act 197460,
for “within the meaning of the Charities Act 1993,” substitute “as defined by section 1(1) of the Charities Act 2006,”.
39
In section 4(13) of the Redundant Churches and other Religious Buildings Act 196961—
a
omit the words following the definition of “prescribed charity”;
b
before the definition of “the Commission” insert—
“charity” has the meaning given by section 96 of the Charities Act 199362;
c
after the definition of “the Commission” insert—
“the court” has the same meaning as in the Charities Act 1993;
40
1
In the provisions listed in sub-paragraph (2), omit the definition of “charity”.
2
The provisions are—
a
section 622(1) of the Housing Act 198563;
b
section 169(9) of the Local Government and Housing Act 198964;
c
section 58(1) of the Charities Act 199265;
d
section 23A(10) of, and paragraph 8A(6) of Schedule 22 to, the School Standards and Framework Act 199866.
41
Omit section 38 of the Housing Associations Act 198567.
42
In section 60(1) of the Landlord and Tenant Act 198768, omit ““charity” means a charity within the meaning of the Charities Act 1993, and”.
43
In—
a
section 125A of the Education Reform Act 198869, and
b
section 22A of the Further and Higher Education Act 199270,
omit “within the meaning of the Charities Act 1993” and for “Schedule 2 to that Act” substitute “Schedule 2 to the Charities Act 199371”.
44
In—
a
section 128(5) of the Education Reform Act 198872, and
b
sections 27(5) and 33N(10) of the Further and Higher Education Act 199273,
for ““charity” and “charitable purposes” have the same meanings” substitute ““charitable purposes” has the same meaning”.
45
In section 58(1)(a) of the Housing Act 199674, for ““charity” and “trusts”, in relation to a charity, have” substitute ““trusts”, in relation to a charity, has” and in section 64 of that Act omit the entry relating to “charity”.
46
1
In section 23(4)(a) of the School Standards and Framework Act 1998, for ““charity” and “institution” have” substitute ““institution” has”.
2
In Schedule 1 to that Act75, in paragraph 10, for “within the meaning of the Charities Act 1993, and is an institution to which section 3A(4)(b) of that Act” substitute “and is an institution to which section 3A(4)(b) of the Charities Act 1993”.
47
In section 63(1) of the Companies (Audit, Investigations and Community Enterprise) Act 200476, in the definition of “English charity”, for “within the meaning of the Charities Act 1993 (see section 96 of that Act)” substitute “as defined by section 1(1) of the Charities Act 2006”.
48
In—
a
section 42(1) of the Criminal Justice and Court Services Act 200077, and
b
paragraphs 4(7) and 8(6) of Schedule 4 to the Safeguarding Vulnerable Groups Act 200678,
for ““charity” and “charity trustee” have the same meanings” substitute ““charity trustee” has the same meaning”.
(This note is not part of the Order)