Information about charity trustees etc.
Section 2 – Inclusion of names of charity trustees on the Scottish Charity Register
10.This section of the Act modifies section 3 (Scottish Charity Register) of the 2005 Act.
11.It inserts a new paragraph (aa) into subsection (3) requiring OSCR to include, in relation to the entry for each charity in the Scottish Charity Register, the name of each of the charity’s trustees. However, this is subject to any exemption that is applied (as set out below).
12.The section also substitutes subsection (4). The original section 3(4) required OSCR to exclude from a charity’s entry in the Register the principal office of the charity (or the name and address of one of its charity trustees if the charity did not have such an office) if, on the application of the charity, OSCR was satisfied that including that information was likely to jeopardise the safety or security of any person or premises.
13.The modifications made by this section mean that the dispensation mechanism now extends to the names of the charity trustees as well. The test remains the same: whether OSCR is satisfied that including the information would be likely to jeopardise the safety or security of any person or premises. This dispensation can be achieved as part of the application for the entry of a body in the Register, or by a later application by a charity or any of its charity trustees. The duty to exclude information need not necessarily equate to an ‘all or nothing’ outcome. For example, if OSCR is only satisfied that including the name of one charity trustee (“Trustee A”) is likely to jeopardise the safety or security of any person or premises, but is satisfied that including the principal office of the charity or the names of the other charity trustees would not draw such risks, it is only required to exclude the name of Trustee A. It will be for OSCR to determine when the safety or security of any person or premises is likely to be jeopardised by an individual’s name appearing on the Register, but this might include (for example) a case where a trustee has an abusive ex-partner who might use the trustee’s affiliation to target them.
14.Whilst the modifications made by this section require things to be done which involve the processing of personal data, this operates within the framework of and is consistent with UK General Data Protection Regulations (“UK GDPR”) and the Data Protection Act 2018. The provision to include the name of each charity trustee in the Register as described above creates a legal obligation for the purposes of Article 6 of the UK GDPR, which operates subject to the dispensation mechanism described above.
15.Consequential amendments are made to sections 17 (notification of other changes) and 71 (decisions) of the 2005 Act in light of these modifications—
Section 17 contains an existing duty to notify OSCR about a change in the charity’s details as set out in its Register entry (which will now cover changes in trustees). The change made to section 17(1)(b) by this section of the Act will require OSCR to be notified of a change in trustees even where trustees’ names are excluded from the Register under the rule discussed above. A minor adjustment is also made to paragraph (a) in order to avoid confusion from specific mention being made of just one trustee. However, it will continue to be the case that if a principal office is not used, changes to the name and address of the designated trustee contact need to be notified under paragraph (a) (while changes to any other trustees are notified under paragraph (b)).
Section 71 already provides for a right of review (and ability for an onwards appeal) of any refusal to disapply the requirement that the Register contains a charity’s address. This is extended to apply equally to a refusal to disapply the requirement to include the names of charity trustees.
Section 3 – Information about charity trustees for OSCR’s use
16.This section inserts a new section 66A (schedule of charity trustees) into the 2005 Act requiring OSCR to keep, in such manner as it thinks fit, a schedule of all charity trustees. The schedule will contain a separate entry for each charity trustee. It may include such information as OSCR considers appropriate and is intended to consist of the contact details of each charity trustee to provide the information needed for OSCR to carry out its regulatory duties effectively.
17.The schedule will not be public facing, so OSCR must specify and publicise the questions about charity trustees which it will require answers to for the purpose of populating the schedule. This is necessary because a consequential change is made to section 17 of the 2005 Act requiring a charity to give OSCR notice of any change which will prompt a change to the schedule, which means that the charity in turn needs to know the type of information that is included in the schedule. However, crucially, the information supplied by trustees will not be publicised.
18.This section of the Act also applies section 22 of the 2005 Act, for the purposes of this section, so that OSCR may require, by notice, any charity to provide it with documents or information which it requires for the purpose of maintaining the schedule (unless the charity would be entitled to refuse on the grounds of confidentiality in the Court of Session).
19.Finally, the section provides that OSCR may retain an entry in the schedule despite a person ceasing to be a charity trustee. However, the retention of this information must relate to the performance of OSCR’s functions (for example, its ability to conduct inquiries into charities).
