The Charities (Protection and Social Investment) Act 2016 (Commencement No. 2 and Transitional Provision) Regulations 2018

Statutory Instruments

2018 No. 47 (C. 8)

Charities, England And Wales

The Charities (Protection and Social Investment) Act 2016 (Commencement No. 2 and Transitional Provision) Regulations 2018

Made

15th January 2018

The Secretary of State makes the following Regulations in exercise of the powers conferred by section 17(4) and (5) of the Charities (Protection and Social Investment) Act 2016(1):

Citation and interpretation

1.—(1) These Regulations may be cited as the Charities (Protection and Social Investment) Act 2016 (Commencement No. 2 and Transitional Provision) Regulations 2018.

(2) In these Regulations—

“the 2011 Act” means the Charities Act 2011(2);

“the 2016 Act” means the Charities (Protection and Social Investment) Act 2016;

“the Commission” has the meaning given in section 13 of the 2011 Act.

Provisions of the 2016 Act coming into force on 1st February 2018

2.  Section 9 of the 2016 Act (automatic disqualification from being a trustee) comes into force to the extent not already in force on 1st February 2018, but only for the purposes of—

(a) making an application to the Commission for a waiver under section 181(2) (waiver of disqualification) of the 2011 Act;

(b) permitting the Commission to consider such an application; and

(c) bringing an appeal in respect of a decision of the Commission relating to such an application.

Provisions of the 2016 Act coming into force on 1st August 2018

3.  The following provisions of the 2016 Act come into force on 1st August 2018—

(a) section 9, for all remaining purposes;

(b) sections 11(1) to (4) (records of disqualification and removal); and

(c) section 12 (participation in corporate decisions while disqualified).

Transitional provision

4.—(1) The coming into force of section 9 of the 2016 Act for all remaining purposes is not to have the effect of disqualifying a person (“P”) under section 178(1) of the 2011 Act (persons disqualified from being charity trustees of trustees of a charity) provided that—

(a) P made an application (“the application”) to the Commission under section 181(2) of the 2011 Act (power to waive disqualification) during the period beginning with 1st February 2018 and ending with 31st July 2018 (“the relevant period”); and

(b) one of the conditions in paragraph (2) applies in respect of P.

(2) The conditions in this paragraph are—

(a) that the Commission has not by the end of the relevant period notified its decision in respect of the application (“the decision”) to P;

(b) that—

(i) the Commission has, before the end of the relevant period, notified the decision to P; but

(ii) P has not, by the end of the appeal application period made an application to the Tribunal to appeal the decision;

(c) that—

(i) the Commission has, before the end of the relevant period, notified the decision to P;

(ii) P has, before the end of the relevant period, made an application to the Tribunal to appeal the decision; and

(iii) the appeal has not been finally determined by the end of the relevant period.

(3) Where P, but for paragraph (1), would have been disqualified under section 178(1) of the 2011 Act upon the coming into force of section 9 of the 2016 Act, P is to be disqualified upon the occurrence of an event described in paragraph (4).

(4) The events described in this paragraph are—

(a) where P has not made an application to the Tribunal within the appeal application period, the expiry of that period;

(b) where P has made an application to the Tribunal within the appeal application period, the final determination of any appeal the effect of which is to uphold the decision.

(5) Nothing in this regulation prevents P being disqualified from being a charity trustee or trustee for a charity by virtue of any other enactment.

(6) Where the appeal application period expires on or after 1st August 2018 the expiry of the relevant period coincides with the last day of the appeal application period;

(7) In this regulation—

(a) “the appeal application period” means the period during which P may make an application to the Tribunal in respect of a decision;

(b) “the Tribunal” has the meaning given in section 315 (the Tribunal) of the 2011 Act.

Tracey Crouch

Parliamentary Under Secretary of State

Department for Digital, Culture, Media and Sport

15th January 2018

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations bring the remaining provisions of the Charities (Protection and Social Investment) Act 2016 (c. 4) (“the 2016 Act”) into force.

The commencement of those provisions is staggered, with section 9 (which makes provision in respect of the automatic disqualification of a charity’s trustees in certain circumstances) being brought into force partially on 1st February 2018. Its partial commencement permits a person to apply to the Charity Commission for a waiver of disqualification under section 181(2) of the Charities Act 2011, such that the coming into force of section 9 for all remaining purposes on 1st August 2018 does not automatically lead to the disqualification of a person who, but for the application for a waiver, would have been automatically disqualified.

The commencement of the remaining provisions of the 2016 Act is consequential on the coming into force of section 9 and relates to the keeping of records in respect of the disqualification and removal of the trustees of charities and the consequences of participating in corporate decisions whilst disqualified.

The effect of the transitional provision is to protect a person who has applied for a waiver from automatic disqualification pending the final determination of that application notwithstanding the coming into force of the remaining provisions of the 2016 Act.

An updated enactment stage Impact Assessment has been prepared for the 2016 Act and is published on www.gov.uk.

NOTE AS TO EARLIER COMMENCEMENT REGULATIONS

(This note is not part of the Regulations)

The following provisions of the Charities (Protection and Social Investment) Act 2016 have been brought into force by commencement regulations made before the date of these Regulations.

Provision	Date of Commencement	S.I. No.
Section 1	1.11.2016	2016/815
Section 2 (partially)	31.07.2016	2016/815
Section 2 (for all remaining purposes)	31.07.2016	2016/815
Section 3	31.07.2016	2016/815
Section 4	31.07.2016	2016/815
Section 5	31.07.2016	2016/815
Section 6	31.07.2016	2016/815
Section 7	31.07.2016	2016/815
Section 8	31.07.2016	2016/815
Section 9 (partially)	31.072016	2016/815
Section 10	1.10.2016	2016/815
Section 11 (partially)	31.07.2016	2016/815
Section 11 (partially)	1.10.2016	2016/815
Section 13	1.11.2016	2016/815
Section 14	31.07.2016	2016/815
Section 15	31.07.2016	2016/815

(1)

2016 c. 4. By virtue of article 10(1) and (2)(g) of S.I. 2016/997 the power to make these Regulations is exercisable by the Secretary of State.

(2)

2011 c. 25.