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Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40)

(The document as of February, 2008)

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Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40)

1990 CHAPTER 40

ARRANGEMENT OF SECTIONS

Content
  1. Part I

    Charities

    1. Recognition of charities

      1. 1. Information as to recognised charities.

      2. 2. Non-recognised bodies.

      3. 3. Designated religious bodies.

    2. Charities accounts

      1. 4. Duty to keep accounting records.

      2. 5. Annual accounts and report.

    3. Supervision of charities

      1. 6. Powers of Lord Advocate to investigate charities and to suspend trustees.

      2. 7. Powers of Court of Session to deal with management of charities.

      3. 8. Disqualification of persons concerned in the management or control of recognised bodies.

    4. Reorganisation of public trusts

      1. 9. Reorganisation of public trusts by the court.

      2. 10. Small trusts.

      3. 11. Expenditure of capital.

    5. Dormant charities

      1. 12. Dormant accounts of charities in banks, etc.

    6. Miscellaneous

      1. 13. Appointment of trustees.

      2. 14. Alteration of purposes and winding-up of charitable companies.

    7. Interpretation

      1. 15. Interpretation of Part I, regulations and orders.

  2. Part II

    Legal Services

    1. Conveyancing and executry services

      1. 16. The Scottish Conveyancing and Executry Services Board.

      2. 17. Qualified conveyancers.

      3. 18. Executry practitioners.

      4. 19. Executry services by recognised financial institutions.

      5. 20. Professional misconduct, inadequate professional services, etc.

      6. 21. Board's intervention powers.

      7. 22. Disclosure of documents etc.

      8. 23. Interpretation of sections 16 to 22.

    2. Rights of audience

      1. 24. Rights of audience in the Court of Session, the House of Lords, the Judicial Committee of the Privy Council and the High Court of Justiciary.

      2. 25. Rights to conduct litigation and rights of audience.

      3. 26. Consideration of applications made under section 25.

      4. 27. Exercise of rights to conduct litigation and rights of audience.

      5. 28. Surrender of rights to conduct litigation and rights of audience.

      6. 29. Revocation of rights granted under section 26.

      7. 30. Regulation of right of English, Welsh and Northern Irish practitioners to practise in Scotland.

    3. Rules of conduct

      1. 31. Rules of conduct etc.

    4. Multi-national practices

      1. 32. Multi-national practices.

    5. Complaints in relation to legal services

      1. 33. Complaints in relation to legal services.

    6. Scottish legal services ombudsman

      1. 34. Scottish legal services ombudsman.

    7. Judicial appointments

      1. 35. Judicial appointments.

    8. Solicitors' and counsel's fees

      1. 36. Solicitors' and counsel's fees.

    9. Miscellaneous and supplementary

      1. 37. Admission of solicitors and notaries public.

      2. 38. Availability of legal aid in relation to services provided under this Act.

      3. 39. Removal of certain restrictions on the borrowing of the court process.

      4. 40. Advisory and supervisory functions of the Director.

      5. 41. Investigatory powers of the Director.

      6. Part III

        The Licensing (Scotland) Act 1976

        1. Times of opening

          1. 45. Permitted hours.

          2. 46. Sunday opening of licensed premises.

          3. 47. Regular extensions of permitted hours.

          4. 48. Restriction orders.

        2. Children's certificates

          1. 49. Children's certificates.

          2. 50. Suspension of children's certificate.

        3. Transfer of licences

          1. 51. Transfer of licences.

        4. Wholesale selling of alcoholic liquor

          1. 52. Wholesale selling of alcoholic liquor.

        5. Observations by Chief Constable

          1. 53. Observations by chief constable in relation to applications.

        6. Supervision of sales by persons over 18

          1. 54. Supervision of sales of liquor in off-sale premises by persons 18 or over.

        7. Presumption as to contents of containers

          1. 55. Presumption as to contents of containers.

      7. Part IV

        Miscellaneous Reforms

        1. Evidence by children in criminal trials

          1. 56. Evidence of children through television link in criminal proceedings.

          2. 57. Transfer of cases in which child's evidence is to be given through television link.

          3. 58. Identification of accused by child.

          4. 59. Interpretation of sections 56, 57 and 58.

        2. Sheriff court jurisdiction

          1. 60. Criminal jurisdiction of sheriff court.

        3. Treatment of offenders

          1. 61. Probation and community service orders and supervision and care of persons on probation or released from prison etc.

          2. 62. Supervised attendance orders as alternative to imprisonment on fine default.

        4. Drug trafficking confiscation orders

          1. 63. Registration and enforcement of external confiscation orders.

        5. Matrimonial interdicts

          1. 64. Matrimonial interdicts.

        6. Homelessness

          1. 65. Homelessness.

        7. Arbitration

          1. 66. UNCITRAL Model Law on International Commercial Arbitration.

        8. Judicial factors

          1. 67. Further provision as to discharge of judicial factors.

        9. Avoidance of civil liability by non-contractual notice

          1. 68. Amendment of Unfair Contract Terms Act 1977.

        10. Liability in respect of services to injured persons

          1. 69. Future services to injured person.

        11. Blood and other samples in civil proceedings

          1. 70. Blood and other samples in civil proceedings.

        12. Powers of attorney

          1. 71. Effect of mental incapacity on powers of attorney etc.

        13. Execution of documents by companies

          1. 72. Execution of documents by companies.

      8. Part V

        General

        1. 73. Finance.

        2. 74. Amendments and repeals.

        3. 75. Citation, commencement and extent.

        1. Schedule 1

          Scottish Conveyancing and Executry Services Board.

          1. Part I

            Constitution, Duties, Powers and Status.

          2. Part II

            Powers of Investigation.

        2. Schedule 2

          Publication of Applications made under Section 25.

        3. Schedule 3

          Scottish Legal Services Ombudsman.

        4. Schedule 4

          Judicial Appointments.

        5. Schedule 5

          Applications for Children's Certificates.

        6. Schedule 6

          Supervised Attendance Orders: Further Provisions.

        7. Schedule 7

          UNCITRAL.

        8. Schedule 8

          Amendment of Enactments.

          1. Part I

            Amendments to the Licensing (Scotland) Act 1976.

          2. Part II

            Miscellaneous.

        9. Schedule 9

          Repeals.

An Act, as respects Scotland, to make new provision for the regulation of charities; to provide for the establishment of a board having functions in connection with the provision of conveyancing and executry services by persons other than solicitors, advocates and incorporated practices; to provide as to rights of audience in courts of law, legal services and judicial appointments, and for the establishment and functions of an ombudsman in relation to legal services; to amend the law relating to liquor licensing; to make special provision in relation to the giving of evidence by children in criminal trials; to empower a sheriff court to try offences committed in the district of a different sheriff court in the same sheriffdom; to provide as to probation and community service orders and the supervision and care of persons on probation and on release from prison and for supervised attendance as an alternative to imprisonment on default in paying a fine; to amend Part I of the Criminal Justice (Scotland) Act 1987 with respect to the registration and enforcement of confiscation orders in relation to the proceeds of drug trafficking; to amend section 24 of the Housing (Scotland) Act 1987; to provide a system for the settlement by arbitration of international commercial disputes; to amend Part II of the Unfair Contract Terms Act 1977; and to make certain other miscellaneous reforms of the law.

[1st November 1990]

Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:--



Part I Charities

Recognition of charities

1 Information as to recognised charities

(1) No obligation as to secrecy or other restriction upon the disclosure of information imposed by statute or otherwise shall prevent the Commissioners of Inland Revenue (in this section referred to as "the Commissioners") from disclosing--

(a) to the Lord Advocate, information as regards any recognised body such as is mentioned in subsection (2) below,

(b) to any person who requests it, the name of any recognised body and the address last used by the Commissioners for any communication with the body and the year when such communication occurred.

(2) A recognised body referred to in subsection (1)(a) above is a body--

(a) which appears to the Commissioners to be or to have been carrying on activities which are not charitable or to be or to have been applying any of its funds for purposes which are not charitable;

(b) which is certified by the Lord Advocate as being a body in respect of which information has been provided to the Scottish charities nominee by a relevant institution in pursuance of section 12 of this Act.

(3) Where any information is made available to any person as mentioned in subsection (1)(b) above, the Commissioners shall include in such information any matter noted by them in respect of the body in pursuance of a requirement made by the Lord Advocate under this Part of this Act.

(4) A recognised body shall provide to any person who requests it, on payment of such reasonable charge in respect of copying and postage as the body may stipulate, a copy of its explanatory document.

(5) Where any recognised body, within one month of its being requested to do so by any person, fails to provide to that person a copy of its explanatory document as mentioned in subsection (4) above, the Lord Advocate, on a complaint being made to him by such person, may direct that the fact of such failure shall be noted for the purposes of subsection (3) above.

(6) Where there has been a failure such as is mentioned in subsection (5) above, the court may, on an application being made by the Lord Advocate, interdict the body and any person concerned in its management or control from engaging in any activity specified in the application until the Lord Advocate intimates to the court that he is satisfied that the explanatory document has been provided.

(7) In this Part of this Act "recognised body" means any body to which the Commissioners have given intimation, which has not subsequently been withdrawn, that relief will be due under section 505 of the [1988 c. 1.] Income and Corporation Taxes Act 1988 in respect of income of the body which is applicable and applied to charitable purposes only, being a body--

(a) which is established under the law of Scotland; or

(b) which is managed or controlled wholly or mainly in or from Scotland,

and a recognised body shall be entitled to describe itself as "a Scottish charity".

(8) For the purposes of any proceedings under or by virtue of this Part of this Act, a certificate purporting to be signed by a person authorised to do so by the Commissioners and certifying that a body is a recognised body shall be sufficient evidence of that fact and of the authority of that person.

(9) In this section "explanatory document" means--

(a) the trust deed of a body or other document constituting the body; or

(b) such other document as the Lord Advocate may approve,

being a document which describes the nature of the body and of its charitable purposes.

2 Non-recognised bodies

(1) A non-recognised body shall not be entitled to represent itself or hold itself out as a charity.

(2) For the purposes of this Part of this Act, any body which is not--

(a) a recognised body; or

(b) a body which is--

(i) registered as a charity in England and Wales under section 4 of the [1960 c. 58.] Charities Act 1960; or

(ii) a charity which is not required to register by virtue of subsection (4) of that section,

is a non-recognised body.

(3) Where a non-recognised body represents itself or holds itself out as a charity, the court may, on an application made by the Lord Advocate, interdict the body from so representing itself or holding itself out until it becomes a body such as is mentioned in paragraph (a) or (b) of subsection (2) above.

3 Designated religious bodies

(1) The Secretary of State may from time to time, by order, designate for the purposes of this section such recognised bodies as appear to him--

(a) to have as their principal purpose the promotion of a religious objective;

(b) to have as their principal activity the regular holding of acts of public worship; and

(c) to be bodies which satisfy each of the conditions mentioned in subsection (2) below.

(2) The conditions referred to in subsection (1)(c) above are--

(a) subject to subsection (4) below, that the body has been established in Scotland for not less than 10 years;

(b) that the body can demonstrate to the satisfaction of the Secretary of State that it has a membership of not less than 3,000 persons resident in Scotland who are 16 years of age or more; and

(c) that the internal organisation of the body is such that one or more authorities in Scotland exercise supervisory and disciplinary functions in respect of the component elements of the body and , in particular, that there are imposed on such component elements requirements as to the keeping of accounting records and the auditing of accounts which appear to the Secretary of State to correspond to those required by sections 4 and 5 of this Act.

(3) Where a body is, for the time being, designated under subsection (1) above the following provisions of this Part of this Act shall not apply to the body nor to any component or structural element of the body which is, itself, a recognised body--

  • section 1(6);

  • section 4;

  • section 5, other than subsections (6) to (8) and subsection (12);

  • section 6(2) and (6);

  • section 7; and

  • section 8.

(4) The Secretary of State may determine that the condition mentioned in subsection (2)(a) above shall not be required to be satisfied in the case of a body--

(a) which has been created by the amalgamation of two or more bodies each of which, immediately before the amalgamation, either was designated under this section or appears to the Secretary of State to have been eligible for such designation; or

(b) which has been constituted by persons who have removed themselves from membership of a body which, immediately before such removal, was so designated or appears to the Secretary of State to have been eligible for such designation.



Charities accounts

4 Duty to keep accounting records

(1) The persons concerned in the management or control of every recognised body shall ensure that there are kept in respect of the body, accounting records which are sufficient to show and explain the body's transactions and which are such as to--

(a) disclose with reasonable accuracy, at any time, the financial position of the body at that time; and

(b) enable them to ensure that any statement of accounts prepared under section 5 of this Act complies with the requirements of that section.

(2) The accounting records shall in particular contain--

(a) entries showing from day to day all sums of money received and expended by the body, and the matters in respect of which the receipt and expenditure takes place; and

(b) a record of the assets and liabilities of the body.

(3) The accounting records which are required by this section to be kept in respect of a recognised body shall be preserved, without prejudice to any requirement of any other enactment or rule of law, for six years from the date on which they are made.

(4) The Secretary of State may, by regulations--

(a) prescribe requirements as to the places where and the persons by whom the accounting records of recognised bodies, including bodies which have been wound up or have ceased to be active, are to be kept; and

(b) provide that such class or classes of recognised body as may be prescribed shall be exempt from such requirements of this section and section 5 of this Act as may be prescribed.

5 Annual accounts and report

(1) The persons concerned in the management or control of every recognised body shall ensure that, in respect of each financial year of the body, there is prepared a statement of accounts.

(2) Subject to subsection (3) below, the statement of accounts of every recognised body shall comprise--

(a) a balance sheet as at the last day of the year;

(b) an income and expenditure account; and

(c) a report as to the activities of the body, having regard to its charitable purposes.

(3) As regards such class or classes of recognised body as the Secretary of State may, by regulations, prescribe a recognised body may elect that in respect of any financial year its statement of accounts shall, instead of the requirements of subsection (2) above, comprise--

(a) a statement of balances as at the last day of the year;

(b) a receipts and payments account; and

(c) a report as to the activities of the body, having regard to its charitable purposes.

(4) The balance sheet shall give a true and fair view of the state of affairs of the body as at the end of the financial year; and the income and expenditure account shall give a true and fair view of the surplus or deficit of the body for the financial year.

(5) The Secretary of State may, by regulations, prescribe--

(a) the form and content of the statement of accounts;

(b) any additional information to be provided by way of notes to the accounts; and

(c) such requirements as to auditing of the balance sheet, statement of balances, income and expenditure account and receipts and payments account and any notes thereon and as to the consideration of the report as he considers appropriate,

and different provision may be prescribed for different bodies or classes of bodies.

(6) The Lord Advocate may require any recognised body to furnish him, without payment therefor, with a copy of its statement of accounts.

(7) Every such body shall--

(a) make available to any person who requests it, on payment of such reasonable charge in respect of copying and postage as the body may stipulate, a copy of its most recent statement of accounts;

(b) inform any person who requests it of its accounting reference date.

(8) Where any recognised body fails, within 10 months, or such longer period as the Lord Advocate may allow, after the end of a financial year, to have prepared a statement of accounts, the Lord Advocate may require that such fact shall be noted for the purposes of section 1(3) of this Act.

(9) Where a body has failed to have prepared a statement of accounts as mentioned in subsection (8) above, the Lord Advocate may require the persons concerned in the management or control of the body to have prepared a statement of accounts, by such date as he may require.

(10) In any case where the statement of accounts has not been prepared by the date specified under subsection (9) above, the Lord Advocate may appoint a suitably qualified person to prepare a balance sheet and income and expenditure account or, in the case of a body which belongs to a class to which subsection (3) above applies if it appears to such person more appropriate to do so, a statement of balances and receipts and payments account; and a person so appointed shall be entitled, for that purpose--

(a) on giving prior notice in writing, to enter, at all reasonable times, the premises of the body;

(b) to take possession of any document appearing to him to relate to the financial affairs of the body;

(c) to require any person concerned in the management or control of the body to give him such information as he may reasonably require relating to the activities of the body,

and the persons concerned in the management or control of the body shall be personally liable jointly and severally for the expenses incurred in the performance of his functions under this section by any person so appointed.

(11) A person appointed under subsection (10) above shall make a report to the Lord Advocate as to the affairs and accounting records of the body and shall send a copy of the report to any person appearing to him to be concerned in the management and control of the body.

(12) Where any such body, within one month of its being requested to do so by any person--

(a) fails to provide to that person a copy of its most recent statement of accounts as mentioned in subsection (7) above; or

(b) fails to inform that person of its accounting reference date,

the Lord Advocate, on a complaint being made to him by such person, may direct that the fact of such failure shall be noted for the purposes of section 1(3) of this Act.

(13) Where in the case of any recognised body, there has been a failure such as is mentioned in subsection (9) or (12) above the court may, on an application being made by the Lord Advocate, interdict the body and any person concerned in its management or control from engaging in any activity specified in the application until the Lord Advocate intimates to the court that he is satisfied that the failure has been rectified.

(14) Section 4 of this Act and subsections (1), (2), (3), (4), (5), (8), (9), (10) and (11) and, so far as it relates to a failure such as is mentioned in the said subsection (9), subsection (13) of this section shall not apply to any recognised body which is --

(a) a company within the meaning of section 735 of the [1985 c. 6.] Companies Act 1985; or

(b) an unregistered company to which Part VII of that Act (accounts and audit) applies by virtue of section 718 of that Act,

and, in the application of the remainder of this section to such a body, references to its income and expenditure account and its report shall be construed as references to its profit and loss account and its directors' report.



Supervision of charities

6 Powers of Lord Advocate to investigate charities and to suspend trustees

(1) The Lord Advocate may at any time make inquiries, either generally or for particular purposes, with regard to--

(a) a recognised body;

(b) a registered, or non-registered, charity operating as such in Scotland; or

(c) a non-recognised body which appears to him to represent itself or hold itself out as a charity and--

(i) is established under the law of Scotland;

(ii) is managed or controlled wholly or mainly in or from Scotland; or

(iii) has any moveable or immoveable property situated in Scotland,

or with regard to any class of any such bodies.

(2) Where it appears to the Lord Advocate--

(a) in the case of a body referred to in paragraph (a) or (b) of subsection (1) above--

(i) that there is or has been any misconduct or mismanagement in its administration; or

(ii) that it is necessary or desirable to act for the purpose of protecting its property or securing a proper application of such property for its purposes; or

(b) in any other case, that a body is a non-recognised body which appears to him to represent itself or hold itself out as a charity,

he may, if the body is managed or controlled wholly or mainly in or from Scotland, suspend any person concerned in its management or control from the exercise of his functions (but not for a period longer than 28 days), and may make provision as respects the period of the suspension for matters arising out of it.

(3) The Lord Advocate may from time to time nominate officers for the purpose of making inquiries such as are mentioned in subsection (1) above.

(4) A nominated officer may by notice in writing require any person who he has reason to believe has relevant information to answer questions or otherwise furnish information with respect to any matter relevant to inquiries being made under this section at a specified place and either at a specified time or forthwith.

(5) A nominated officer may, for the purpose of making inquiries under this section--

(a) require any person having in his possession or control any records relating to a body which is the subject of inquiries under this section to furnish him with copies of or extracts from any such records; or

(b) unless it forms part of the records of a court or of a public body or local authority, require such a person to transmit the record itself to him for inspection,

either by a specified time or forthwith.

(6) If any person fails or refuses to comply with a requirement made under subsection (4) or (5) above, the nominated officer may apply by summary application to the sheriff for an order requiring that person to--

(a) attend and to answer such questions or to furnish such information at a time and place specified in the order;

(b) furnish the nominated officer with copies or extracts of such records as are specified in the order and by such time as is specified in the order;

(c) transmit to the nominated officer such records as are specified in the order by such time as is specified in the order,

and the sheriff shall, if he considers it expedient to do so, make such an order.

(7) A person shall not be excused from answering such questions as he may be required to answer by virtue of subsection (6) above on the ground that the answer may incriminate or tend to incriminate him, but a statement made by him in answer to any such question shall not be admissible in evidence in any subsequent criminal proceedings against him, except in a prosecution for an offence under section 2 of the [1933 c. 20.] False Oaths (Scotland) Act 1933.

(8) A person who fails to comply with an order under subsection (6) above shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(9) Any person who wilfully alters, suppresses, conceals or destroys any record which he may be required to furnish or transmit under this section shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale or to imprisonment for a term not exceeding 6 months or to both.

(10) Subject to subsections (11) and (12) below, there shall be paid to any person who complies with a requirement under subsection (4) or (5) above such expenses as he has reasonably incurred in so complying.

(11) A nominated officer shall, for the purpose of making inquiries under this section, be entitled without payment to inspect and take copies of or extracts from records in respect of which no requirement can be made under paragraph (b) of subsection (5) above.

(12) A nominated officer shall, for the purpose of making inquiries under this section, be entitled without payment to keep any copy or extract furnished to him under this section; and where a record transmitted to him for his inspection relates only to one or more recognised body and is not held by any person entitled as trustee or otherwise of such a body to the custody of it, the nominated officer may keep it or may deliver it to the trustees of such a body or to any other person who may be so entitled.

(13) In this section, "record" means a record held in any medium and includes books, documents, deeds or papers; and, in this Part of this Act--

  • "registered charity" means a body which is registered as a charity in England and Wales under section 4 of the [1960 c. 58.] Charities Act 1960; and

  • "non-registered charity" means a charity which, by virtue of sub-section (4) of section 4 of that Act, is not required to register under that section.

7 Powers of Court of Session to deal with management of charities

(1) Where it appears to the court, in the case of a recognised body or a registered, or non-registered, charity which is managed or controlled wholly or mainly in or from Scotland, that--

(a) there is or has been any misconduct or mismanagement in its administration; or

(b) it is necessary or desirable to act for the purpose of protecting its property or securing a proper application of such property for its purposes,

it may, on the application of the Lord Advocate, exercise any of the powers specified in paragraphs (a) to (f) of subsection (4) below.

(2) Where the court is satisfied, in the case of such a body as is mentioned in subsection (1) above, that--

(a) there is or has been any misconduct or mismanagement in its administration; and

(b) it is necessary or desirable to act for the purpose of protecting its property or securing a proper application of such property for its purposes,

it may, on the application of the Lord Advocate, exercise any of the powers specified in paragraphs (f) to (j) of subsection (4) below.

(3) Where the court is satisfied that a non-recognised body--

(a) represents itself or holds itself out as a charity; and

(b) is established under the law of Scotland or is managed or controlled wholly or mainly in or from Scotland or has moveable or immoveable property situated in Scotland,

it may, on the application of the Lord Advocate, exercise any of the powers specified in subsection (4) below.

(4) The powers which may be exercised under this subsection by the court are--

(a) to interdict ad interim the body from representing itself or holding itself out as a charity or from such other action as the court, on the application of the Lord Advocate, thinks fit;

(b) to suspend any person concerned in the management or control of the body;

(c) to appoint ad interim a judicial factor to manage the affairs of the body;

(d) to make an order requiring any bank or other person holding money or securities on behalf of the body or of any person concerned in its control and management not to part with the money or securities without the court's approval;

(e) to make an order, notwithstanding anything in the trust deed or other document constituting the body, restricting the transactions which may be entered into, or the nature or amount of the payments which may be made, in the administration of the body without the approval of the court;

(f) to appoint a trustee, and section 22 of the [1921 c. 58.] Trusts (Scotland) Act 1921 shall apply to such a trustee as if he had been appointed under that section;

(g) to interdict the body from representing itself or holding itself out as a charity or from such other action as the court, on the application of the Lord Advocate, thinks fit;

(h) to remove any person concerned in the management or control of the body;

(j) to appoint a judicial factor to manage the affairs of the body.

(5) Where the court is satisfied, in the case of such a body as is mentioned in subsection (1) above, that--

(a) there has been in its administration any misconduct or mismanagement;

(b) it is necessary or desirable to act for the purpose of protecting its property or securing a proper application of such property for its purposes;

(c) it is not practicable nor in the best interests of the body to retain its existing administrative structure and, if appropriate, trustee body; and

(d) in its opinion, the body's purpose would be achieved better by transferring its assets to another such body,

or where the court is satisfied as mentioned in subsection (3) above in the case of a non-recognised body, it may approve a scheme, presented to it by the Lord Advocate and prepared by him in accordance with regulations made by the Secretary of State, for the transfer of any assets of the body to such body as the Lord Advocate specifies in the scheme, being a recognised body or a registered, or non-registered, charity which is managed or controlled wholly or mainly in or from Scotland.

(6) In the case of a registered, or non-registered, charity which is managed or controlled wholly or mainly outside Scotland but on behalf of which a bank or other person in Scotland holds moveable property, the court may, on the application of the Lord Advocate acting on information received from the Charity Commissioners for England and Wales, make an order requiring the bank or person not to part with that property without the court's approval and such an order shall be subject to such conditions as the court thinks fit.

(7) Where the court has made an order under subsection (6) above and is satisfied, in the case of such a charity, that--

(a) there has been in its administration any misconduct or mismanagement; and

(b) it is necessary or desirable to act for the purpose of protecting its property or securing a proper application of such property for its purposes,

it may, on the further application of the Lord Advocate, make an order confirming the order made under subsection (6) above and such an order shall be subject to such conditions as the court thinks fit.

(8) Where the court has made an order under subsection (6) above and it is satisfied as to the matters specified in subsection (7) above in respect of such a charity, if in its opinion the moveable property would not be applied for the purposes of the charity, it may, on the further application of the Lord Advocate, transfer that property to such body as the Lord Advocate specifies in the application, being a body--

(a) which is a recognised body or registered, or non-registered, charity the purposes of which closely resemble the purpose of the charity whose moveable property is transferred; and

(b) which has intimated that it will receive that property.

(9) The court shall have power--

(a) to vary or recall an order made under paragraph (d) or (e) of subsection (4) above or under subsection (6) or (7) above;

(b) to recall the suspension of a person under paragraph (b) of subsection (4) above

(c) to approve a scheme under subsection (5) above subject to such modifications as it thinks fit;

(d) subject to subsection (10) below, to award expenses as it thinks fit in any proceedings before it under this section.

(10) In a case where, but for the provisions of this subsection, the court would have awarded expenses against the body which is the subject of the proceedings, the court--

(a) shall have regard to the desirability of applying the property of the body for the charitable purposes of that body, or the charitable purposes which are purported to be the purposes of that body, and

(b) may award expenses against a person concerned in the control or management of the body, or against any such persons jointly and severally.

(11) Where the court exercises in respect of a recognised body any power specified in subsection (4) or (5) above, the Lord Advocate may require that exercise to be noted for the purposes of section 1(3) of this Act.

(12) In this section "the court" means the Court of Session.

8 Disqualification of persons concerned in the management or control of recognised bodies

(1) A person who--

(a) has been convicted of an offence involving dishonesty;

(b) is an undischarged bankrupt;

(c) has been removed, under section 7 of this Act, from being concerned in the management or control of any body; or

(d) is subject to a disqualification order under the [1986 c. 46.] Company Directors Disqualification Act 1986,

shall, subject to the provisions of this section, be disqualified from being concerned with the management or control of a recognised body.

(2) A person shall not be disqualified under subsection (1) above if--

(a) the conviction mentioned in that subsection is spent by virtue of the [1974 c. 53.] Rehabilitation of Offenders Act 1974; or

(b) the Lord Advocate has thought fit to grant in writing a waiver of that disqualification in respect of that person,

but the Lord Advocate shall not grant a waiver where to do so would prejudice the operation of the [1986 c. 46.] Company Directors Disqualification Act 1986.

(3) A person who is concerned with the management or control of a recognised body whilst disqualified by virtue of this section shall be guilty of an offence and liable--

(a) on summary conviction, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum or to both; and

(b) on conviction on indictment, to imprisonment for a term not exceeding 2 years or to a fine or to both.

(4) The acts, in relation to the management or control of such a body, of such a person as is mentioned in subsection (1) above shall not be invalid only by reason of his disqualification under that subsection.

(5) Proceedings for an offence under subsection (3) above shall not be commenced after the end of the period of 3 years beginning with the day on which the offence was committed but, subject to that, may be commenced at any time within 6 months from the date on which evidence sufficient in the opinion of the procurator fiscal to warrant proceedings came to his knowledge; and a certificate of the procurator fiscal as to the date on which such evidence came to his knowledge shall be conclusive evidence of that fact.

(6) In this section, "undischarged bankrupt" means a person who has had his estate sequestrated, been adjudged bankrupt or has granted a trust deed for or entered into an arrangement with his creditors and has not been discharged under or by virtue of--

(a) section 54 or section 75(4) of the [1985 c. 66.] Bankruptcy (Scotland) Act 1985;

(b) an order under paragraph 11 of Schedule 4 to that Act of 1985;

(c) section 279 or section 280 of the [1986 c. 45.] Insolvency Act 1986; or

(d) any other enactment or rule of law subsisting at the time of his discharge



Reorganisation of public trusts

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9 Reorganisation of public trusts by the court

(1) Where, in the case of any public trust, the court is satisfied--

(a) that the purposes of the trust, whether in whole or in part--

(i) have been fulfilled as far as it is possible to do so; or

(ii) can no longer be given effect to, whether in accordance with the directions or spirit of the trust deed or other document constituting the trust or otherwise;

(b) that the purposes of the trust provide a use for only part of the property available under the trust;

(c) that the purposes of the trust were expressed by reference to--

(i) an area which has, since the trust was constituted, ceased to have effect for the purpose described expressly or by implication in the trust deed or other document constituting the trust; or

(ii) a class of persons or area which has ceased to be suitable or appropriate, having regard to the spirit of the trust deed or other document constituting the trust, or as regards which it has ceased to be practicable to administer the property available under the trust; or

(d) that the purposes of the trust, whether in whole or in part, have, since the trust was constituted--

Pages: P.1 | P.2 | P.3 | P.4 | P.5 | P.6 | P.7 | P.8 | P.9 | P.10

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