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I am happy to take that away and to provide an update to Mr Briggs and the committee, and we can address that at stage 3, if necessary.

Amendment 3 agreed to.

Amendments 4 to 12 moved—[Shirley-Anne Somerville]—and agreed to.

Section 12, as amended, agreed to.

After section 12

The rationale was to ensure that we provide OSCR with the powers to do what it needs to do, such as in the example that I gave in my introductory remarks of a women’s refuge. If there is a threat to a trustee or a trustee feels that they might be threatened if their information is published, that information can be withheld. We are still upholding transparency, but we are respecting the specific circumstances in which a trustee, for understandable reasons, might not wish their details to be made public. Amendment 1 simply ensures the policy intent of the bill without imposing on OSCR what it might perceive as an additional burden.

These are three very minor amendments. Amendment 15 removes a redundant cross-reference. Amendments 17 and 19 modify two of the headings in the 2005 act, which OSCR and the Charity Law Association, respectively, flagged as being potentially confusing or inaccurate. My thanks to them for highlighting those points.

I move amendment 15.

Amendment 15 agreed to.

Amendments 16 and 17 moved—[Shirley-Anne Somerville]—and agreed to.

The 2005 act retained the concept of designated religious charities, or DRCs, which existed under preceding legislation. The rules in the 2005 act recognise that many religious bodies operate effective self-regulatory mechanisms by having an internal organisation with supervisory and disciplinary functions and seek to avoid overregulating such charities.

However, the 2005 act places restrictions on whom OSCR can share information with and for what purpose. In general, information can be shared only with public bodies and office-holders for the purpose of enabling or assisting in the exercise of either OSCR or the body’s functions. As a DRC is not a public body and the information to be shared by OSCR would not be for the exercise of its own function, it is not currently permitted.

The bill does not seek to change that original policy intent of the 2005 act. It seeks to address a practical issue identified by OSCR and the DRCs around the ability to share information. Amendment 18 will enable OSCR and the DRCs to share information if necessary for any purpose connected with the exercise of OSCR’s functions or for the purpose of enabling or assisting the DRC to exercise any supervisory or disciplinary functions that it holds in relation to its component elements.

For example, when OSCR receives information from an auditor or independent examiner in relation to the accounts of a charity that is a component part of a DRC, OSCR is currently unable to share that information with the relevant DRC. That DRC, in turn, is then unable to fulfil its regulatory functions. This small amendment will allow DRCs to fully exercise their functions in respect of their component parts, thereby improving and enhancing the regulation of those charities. The amendment makes sure that the current arrangements with DRCs can work properly and that the original policy intent is not hampered by the inability to share information when necessary.

I hope that the committee will agree with the approach that is being taken here and will support amendment 18. As the current position is that some charities are designated as DRCs, the bill needs to ensure that they can exercise their functions as intended by the 2005 act.

I move amendment 18.

Amendment 18 agreed to.

Amendments 19 and 20 moved—[Shirley-Anne Somerville]—and agreed to.

Schedule, as amended, agreed to.

Sections 18 to 20 agreed to.

Long title agreed to.

I have no further comments.

Amendment 1 agreed to.

Section 2, as amended, agreed to.

After section 2

Amendments 3 to 12 refine the record of mergers provisions as introduced following discussions with OSCR about how they will work in practice. They do not alter the fundamental intent of the provisions, which is to ensure that legacies left to charities in wills are retained for the charity sector and that so-called shell charities do not clog up the register simply for the purpose of collecting legacies.

Amendment 3 will provide that a transferee charity has a choice as to whether or not to notify OSCR of the merger rather than being under a duty to do so. Notification of the merger may be done at any time after the transfer of all property, rights and liabilities of the transferor is complete. Although we imagine that, in most cases, transferees will want to notify OSCR of a merger, we do not think that it needs to be a specific duty.

Amendments 4 to 11 will provide that the key date that will trigger the rules on redirection of a legacy will be the date on which notice of a merger is given to OSCR, instead of the date on which OSCR records the merger. That will mean that there is no risk of a legacy being lost due to a delay in OSCR recording a merger—for example, when a merger is notified just before a bank holiday and the testator dies during that weekend. OSCR must still keep a record of all charity mergers that are notified to it, and the record can be used as a reference point to establish what has been notified and when.

The amendments will also provide that a transferor charity will not need to have formally wound up or dissolved in order for the rule on redirecting legacies to apply, which should avoid disrupting any winding-up processes that the charity might have commenced, having already transferred all its property to another charity.

Amendment 4 will also give the Scottish ministers the power to clarify what is meant by notice being given. In most cases, the giving of a notice will be instantaneous, using email or OSCR’s online system. However, where notification is sent by post, there might be a need to make specific rules around when a notification of a merger should be treated as having been given—for example, when delays occur due to postal strikes.

It might transpire that there is no need to bring forward regulations to clarify that type of point. However, given that section 12 introduces a new process, I want to ensure that any unforeseen issues relating to notification that arise in practice can be swiftly addressed, particularly once OSCR has established a process for dealing with merger notifications.

Amendment 12 corrects a referencing error in relation to the definition of a will.

I move amendment 3.

This group deals with notices that are given both by and to OSCR. I will speak to amendments 14 and 20 first, which deal with notices that are given by OSCR.

Amendment 14 makes a minor change when OSCR is obtaining documents from a third party for an inquiry into a former charity. The amendment clarifies the application of the rule that ensures that, when a body continues to exist but without charitable status, notice is served by OSCR on the body that used to be a charity.

Amendment 20 is designed to provide OSCR with alternative methods of serving notice in certain circumstances.

As part of its overarching duty to act in a fair, transparent and proportionate way, OSCR is required to serve notice on a charity or a charity trustee before it can take specified regulatory action—for example, issuing a direction.

However, in some cases, OSCR does not have accurate contact information for the charity or trustees in order to serve the notice, which means that OSCR is prevented from pursuing regulatory action, as it is unable to serve the required notice. Although the introduction of an internal schedule of trustee details held by OSCR will, in large part, address that problem, there will, inevitably, be cases in which contact information is unavailable or becomes out of date.

Amendment 20 will allow OSCR to serve the relevant notices by other means—for example, by publishing a notice on its website. Serving notice by other means would be used as a last resort when previous attempts to contact the charity directly had failed. That will allow OSCR to continue its regulatory action.

Amendment 20 relates only to notices in respect of which the action being taken is such that it is still appropriate to take it even if the charity or body in question cannot be contacted directly. For example, if a direction is issued to a bank not to part with charity funds but the charity also needs to be notified of the direction, there would be value in issuing that direction to the bank even if the charity itself cannot be located and can be notified only by means of a public notice.

I turn to notices that are given to OSCR. Amendment 16 addresses concerns that were raised by stakeholders—in particular, the Law Society of Scotland—about the current requirement that charities wishing to take certain actions that require OSCR’s consent give OSCR at least 42 days’ advance notice before they take the relevant action.

Amendment 16 does not remove the need for charities to obtain OSCR’s consent before taking such actions; it means that, once OSCR grants its consent, the charity will be able to act straight away, if it wishes, instead of having to wait until the end of the 42-day period.

I hope that the committee will agree with the approach that is being taken to all these notice requirements and that it will support all the amendments in the group.

I move amendment 14.

Amendment 14 agreed to.

Section 14, as amended, agreed to.

Sections 15 and 16 agreed to.

After section 16

Amendment 2 addresses the recommendation made by the committee at stage 1 to provide for a dispute mechanism in connection with OSCR’s appointment of interim trustees. The committee raised the issue that there was a lack of recourse for any existing charity trustees of a charity to which interim trustees are appointed. The amendment addresses that issue by extending the established review and appeal mechanism under the Charities and Trustee Investment (Scotland) Act 2005 to appointments of interim trustees in cases in which it is known that there are still some existing charity trustees continuing to act.

The new provision that is introduced by section 8 is designed primarily to capture those small number of cases in which there are no trustees acting for the charity. However, I accept that there might be some occasions on which an existing trustee could still be acting and a right of review over OSCR’s decision is warranted. The same is also true of the existing appointment process, which is restated by section 8.

In that scenario, although the aim is that the existing trustees would ask OSCR to step in because they are unable to make an appointment themselves, that request does not have to be unanimous. As such, I agree that it is right that there should be a review and appeal mechanism for any trustee who wants to challenge that decision. I hope that members will therefore support the amendment.

I move amendment 2.

Amendment 13 introduces a new section to the bill, albeit that it is on a topic that has previously been subject to full public consultation. Amendment 13 seeks to clarify the existing provisions in the 2005 act that relate to the reorganisation of endowments held by what are often referred to, for shorthand, as statutory charities—that is, charities that are constituted under royal charter or royal warrant or an enactment. An endowment is property where the capital has to be preserved and only the income is spent on the fund’s charitable purposes.

For most charities, if the charity’s constitution would not allow it to take an action such as varying its constitution, transferring its property to another charity or amalgamating with another charity, the charity can apply for a reorganisation scheme to allow it to take that action, if OSCR grants consent.

However, those rules are turned off for statutory charities, subject to a specific exception relating to endowments. The wording of the existing provision has caused confusion for some statutory charities and OSCR about the extent to which an endowment can be reorganised by OSCR. In some cases, that has meant that the only way forward is through the use of private bills to reorganise endowments. My amendment 13 is intended to resolve that issue and to allow endowments that are held by statutory charities to be reorganised, as we believe the 2005 act always intended.

It is not a straightforward area of the law and, as such, I anticipate that there might be a need for further technical refinement of the proposed new section at stage 3, once detailed feedback from charities, legal professionals and OSCR has been received.

Given the complexity that is involved, there are also wider issues around statutory charity reorganisation that would still need to be considered in the post-bill review. However, amendment 13 provides a solution in the short term for some statutory charities, and they should see significant financial savings by no longer needing to reorganise through a private bill.

It is right to deal first with fixing the rules around endowments, as there is a long historical precedent for those being allowed to reorganise more readily, and there is existing provision on which to build. It was also the current exception relating to endowments that OSCR asked us to clarify in its 2018 paper with the proposals that form the backbone of the bill.

Amendment 13 contains two new regulation-making powers for Scottish ministers. The first is a power to adjust the definition of “endowment”, should practical experience of the new provisions give rise to any issues.

The second power gives ministers the ability to disapply—through regulation—those changes in respect of particular endowments or charities, or classes of endowment or charity. The latter aspect is considered necessary in order to ensure that, where there are policy reasons for restricting the reorganisation of a particular endowment or charity, that can be achieved.

I hope that members will agree that we should do what we can do now to refine the provision on that topic that is already in the 2005 act. Then, in the post-bill review, we can turn to the much wider question of reorganisations that do not involve endowments.

I move amendment 13.

Good morning. I will make a brief statement on the purpose of the SSI.

The SSI relates to our work to implement the Civil Partnership (Scotland) Act 2020, which introduced mixed-sex—that is, opposite-sex—civil partnerships in Scotland. Some 939 mixed-sex civil partnerships were entered into in Scotland in 2021 and 2022. We have been implementing the 2020 act in stages.

When the Scottish Government introduced the bill that became the 2020 act, we recognised that the introduction of mixed-sex civil partnerships could increase the risk of forced civil partnership. We do not consider that the risk of forced civil partnership is nearly as great as the risk of forced marriage. However, there is a range of protections against forced marriage, and we wanted to close any loophole that might allow those protections to be circumvented by forcing someone into a civil partnership instead. Therefore, section 13 of the 2020 act extends the forced marriage criminal offence to cover forced civil partnerships, too. I have just signed the Civil Partnership (Scotland) Act 2020 (Commencement No 5) Regulations 2023, which will commence section 13 of the 2020 act from 30 November 2023.

We noted in the policy memorandum accompanying the bill that part 1 of the Forced Marriage etc (Protection and Jurisdiction) (Scotland) Act 2011 contains civil measures on forced marriage, including forced marriage protection orders. We noted that we intended to introduce an SSI to extend forced marriage protection orders so that they can cover forced civil partnerships, too—that is the SSI that is before the committee. Those orders can contain prohibitions, restrictions, requirements or other provisions that are intended to protect someone from forced marriage. The provisions in the 2020 act to extend the forced marriage offence, and this SSI to extend the civil measure of forced marriage protection orders, provide a legislative package against forced civil partnership.

The SSI also makes two technical changes. First, it amends the definition of “marriage” in the 2011 act to include belief ceremonies. That is consequential to the Marriage and Civil Partnership (Scotland) Act 2014, which included provision for the solemnisation of marriage by authorised celebrants of belief bodies.

Secondly, the SSI provides for decrees of declarator of nullity of marriage, when they are granted by a sheriff, to be included in a register of divorces that is operated by National Records of Scotland. That reflects the fact that the 2011 act extended jurisdiction in proceedings for declarator of nullity of marriage to the sheriff court; previously, those proceedings could be heard only in the Court of Session. Declarators of nullity are declarations by the courts that, in the eyes of the law, the relationship never existed.

If the SSI is approved by Parliament, our intention is to bring it into force on 30 November, to coincide with the forced marriage criminal offence being extended to cover forced civil partnerships.

That outlines the purpose of the SSI that is before the committee.