Back to the Scottish Parliament Business Bulletin No.90/2005: Friday 3 June 2005
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Section G – Bills

New Bills introduced or reprinted on 2 June 2005

Protection of Children and Prevention of Sexual Offences (Scotland) Bill —The Bill was reprinted as passed (SP Bill 30B) (Executive Bill).

New amendments to Bills lodged on 2 June 2005

Smoking, Health and Social Care (Scotland) Bill – Stage 2

Section 31

Dr Jean Turner

89 In section 31, page 27, line 25, after <may> insert <as the majority share-holder>

Dr Jean Turner

90 In section 31, page 27, line 37, at end insert—

<( ) The Scottish Ministers shall produce, and from time to time publish, a code of practice on companies established under subsection (1), including—

(a) guidance as to the form and content of the memorandum and articles of association establishing a company;

(b) guidance as to the form and content of contracts let by a company;

(c) arrangements for making copies of such memorandum and articles of association and contracts available for public inspection;

(d) arrangements for appointing a company director or board of directors;

(e) arrangements for making details of the director or board of directors available for public inspection; and

(f) arrangements for independent reviews of a company.

( ) Before publishing a such code, the Scottish Ministers shall consult health boards, local authorities, and any other persons, or groups of persons, that appear to them to have an interest in companies established under subsection (1).

( ) The Scottish Ministers shall give a copy of the code of practice to any person who requests such a copy.>

Dr Jean Turner

91 In section 31, page 28, line 10, at end insert <as the majority share holder>

Charities and Trustee Investment (Scotland) Bill – Stage 3

Section 1

Malcolm Chisholm

20 In section 1, page 2, line 5, at end insert—

<( ) In performing its functions OSCR must, so far as relevant, have regard to—

(a) the principles under which regulatory activities should be proportionate, accountable, consistent, transparent and targeted only at cases in which action is needed, and

(b) any other principle appearing to OSCR to represent best regulatory practice.>

Section 7

Scott Barrie

21 In section 7, page 4, line 22, at end insert <(including the provision of non-formal education opportunities through youth work to promote the development of young people, and the provision of other non-formal education opportunities)>

After section 18

Christine Grahame

22 After section 18, insert—

<Information about charities removed from Register or defunct charities

(1) OSCR must maintain a list of all charities removed from the Register (under section 18 or otherwise) or defunct charities.

(2) The Scottish Ministers may by regulations make further provision as to the nature of the information to be contained in the list and the manner in which it may be held.

(3) Section 21 applies to the list maintained under subsection (1) as it applies to the Register.>

Section 24

Malcolm Chisholm

23 In section 24, page 12, line 35, at end insert—

<( ) A power to disclose information under subsection (1) or (2) is, unless section 25 otherwise provides, subject to any obligation as to secrecy or other restriction on disclosure of the information however imposed.>

Section 25

Malcolm Chisholm

24 In section 25, page 13, line 2, leave out from beginning to <restriction> in line 5 and insert—

<(2) No obligation as to secrecy or other restriction on disclosure of information however imposed>

Malcolm Chisholm

25 In section 25, page 13, line 13, leave out from beginning to <functions> in line 17 and insert—

<(da) any person from disclosing any information to OSCR about any matter in respect of which the person is required or authorised by section (Duty of auditors etc. to report matters to OSCR) to make a report to OSCR,>

Section 28

Mr John Home Robertson

26 In section 28, page 14, line 24, at end insert—

<( ) OSCR may make inquiries under subsection (1) of its own accord or on the representation of any person.>

Section 31

Malcolm Chisholm

27 In section 31, page 17, line 3, at end insert—

<( ) OSCR’s power to suspend a person by giving notice under subsection (4)(a) or (b) does not apply if OSCR considers that the person has acted honestly and reasonably in relation to the misconduct concerned and ought fairly to be excused.>

Section 38

Malcolm Chisholm

28 In section 38, page 21, line 39, at end insert—

<(8A) Sections 24 to 26 apply in relation to a public body or office-holder to whom OSCR’s functions are delegated by virtue of subsection (1) or (2) as they apply to OSCR, but subject to the following modifications—

(a) references in those sections to OSCR and to OSCR’s functions are to be read as references to the public body or office-holder and to the functions delegated to it, and

(b) the reference in section 25(da) to section (Duty of auditors etc. to report matters to OSCR) is to be read as a reference to subsection (8B).

(8B) Where any of OSCR’s functions are delegated to another public body or office-holder by virtue of subsection (1) or (2), a person to whom section (Duty of auditors etc. to report matters to OSCR) applies—

(a) must report to the body or office-holder on any matter which the person would, but for that delegation, be required by section (Duty of auditors etc. to report matters to OSCR)(2) to report on to OSCR,

(b) may report to the body or office-holder on any matter which the person would, but for that delegation, be authorised by subsection (Duty of auditors etc. to report matters to OSCR)(3) to report on to OSCR.

(8C) A duty or power which arises under subsection (8B) is not affected if the person in relation to whom it arises subsequently stops acting in the capacity mentioned in section (Duty of auditors etc. to report matters to OSCR)(1).>

Section 39

Malcolm Chisholm

29 Leave out section 39

Section 43

Malcolm Chisholm

30 In section 43, page 24, leave out lines 3 and 4

After section 46

Malcolm Chisholm

31 After section 46, insert—

<Duty to report matters to OSCR

Duty of auditors etc. to report matters to OSCR

(1) This section applies to—

(a) any person appointed to carry out an independent examination or audit of a charity’s statement of account (including, in the case of a charity which is a company, any person appointed as auditor under Chapter 5 of Part 11 of the Companies Act 1985 (c.6)), and

(b) any person appointed for the purposes of section 249A(2) of that Act to prepare a report on the accounts of a charity which is a company,

who is acting in the appointed capacity.

(2) A person to whom this section applies who becomes aware of any matter—

(a) which relates to the activities or affairs of—

(i) the charity who appointed the person, or

(ii) any institution or body corporate connected to that charity, and

(b) which the person has reasonable cause to believe is likely to be of material significance for the purposes of the exercise by OSCR of its functions under section 28, 30 or 31,

must immediately report on the matter to OSCR.

(3) A person to whom this section applies who becomes aware of any matter—

(a) which does not appear to the person to be one which the person is required to report under subsection (2), but

(b) which the person has reasonable cause to believe is likely to be relevant for the purposes of the exercise by OSCR of any of its functions,

may report on the matter to OSCR.

(4) A duty or power which arises under subsection (2) or (3) is not affected if the person in relation to whom it arises subsequently stops acting in the capacity mentioned in subsection (1).

(5) An institution or body corporate is connected to a charity if—

(a) it is an institution which is controlled (whether directly or through one or more nominees) by, or, as the case may be

(b) it is a body corporate in which a substantial interest is held by,

the charity or any one or more of the charity trustees acting in that capacity.

(6) Section (Meaning of “control” etc.) sets out when a person is to be treated as controlling an institution or as having a substantial interest in a body corporate.>

Section 56

Malcolm Chisholm

32 In section 56, page 30, line 15, leave out from <formed> to end of line 16

Section 65

Malcolm Chisholm

33 In section 65, page 36, line 29, leave out <may> and insert <is to>

Section 66

Malcolm Chisholm

34 In section 66, page 36, line 32, at end insert—

<(A1) A charity trustee may not be remunerated for services provided to the charity (including services provided in the capacity as a charity trustee or under a contract of employment) unless subsection (1) entitles the trustee to be so remunerated.>

Malcolm Chisholm

35 In section 66, page 37, line 24, leave out <Subsection (1) does not prevent> and insert <Nothing in subsections (A1) or (1) prevents>

Malcolm Chisholm

36 In section 66, page 37, line 27, after <any> insert <authorising>

Malcolm Chisholm

37 In section 66, page 37, line 27, leave out from second <the> to end of line 28 and insert < 15 November 2004>

Malcolm Chisholm

38 In section 66, page 37, line 30, at end insert—

<( ) For the purposes of subsection (5)(a), an “authorising provision” is a provision which refers specifically to the payment of remuneration—

(a) to the service provider concerned,

(b) where that service provider is a charity trustee, to a charity trustee, or

(c) where that service provider is connected to a charity trustee, to any person so connected.>

Section 67

Malcolm Chisholm

39 In section 67, page 38, line 37, leave out from beginning to end of line 10 on page 39 and insert—

<( ) Section (Meaning of “control” etc.) sets out when a person is to be treated as being in control of an institution or as having a substantial interest in a body corporate.>

Section 78

Malcolm Chisholm

40 In section 78, page 44, leave out lines 27 and 28

Section 93

Malcolm Chisholm

41 In section 93, page 56, line 26, at end insert—

<4B Exercise of power of investment: power to appoint nominees

(1) The trustees of a trust may, for the purpose of exercising the power of investment under section 4(1)(ea) of this Act—

(a) appoint a person to act as their nominee in relation to such of the trust estate, heritable as well as moveable, as they may determine, and

(b) take such steps as are necessary to secure the transfer of title to that property to their nominee.

(2) A person may not be appointed as a nominee unless the trustees reasonably believe—

(a) that the appointment is appropriate in the circumstances of the trust, and

(b) that the proposed nominee has the skills, knowledge and expertise that it is reasonable to expect of a person acting as a nominee.

(3) The power to appoint a nominee is subject to any restriction or exclusion imposed by or under—

(a) the trust deed, or

(b) any enactment (within the meaning of the Scotland Act 1998 (c.46)).

(4) An appointment as a nominee shall—

(a) be made in writing,

(b) be subject to the trustees’ retaining power to—

(i) direct the nominee, and

(ii) revoke the nominee’s appointment, and

(c) subject to subsection (4), otherwise be on such terms as to suitable remuneration and other matters as the trustees may determine.

(5) The trustees may not appoint a nominee on any of the following terms unless it is reasonably necessary for them to do so—

(a) a term permitting the nominee to appoint a substitute,

(b) a term restricting the liability of the nominee, or of any substitute, to the trustees or to any beneficiary,

(c) a term permitting the nominee, or any substitute, to act in circumstances capable of giving rise to a conflict of interest.

(6) While a nominee continues to act for the trust, the trustees shall—

(a) keep under review the arrangements under which the nominee acts and how those arrangements are being put into effect,

(b) if circumstances make it appropriate to do so, consider whether there is a need to exercise their power—

(i) to direct the nominee, or

(ii) to revoke the nominee’s appointment, and

(c) exercise either or both of those powers if they consider that there is a need to do so.”>

Section 98

Malcolm Chisholm

42 In section 98, page 58, line 31, after <court)> insert <, report>

After section 102

Malcolm Chisholm

43 After section 102, insert—

<Meaning of “control” etc.

(1) A charity which is able (whether directly or through one or more nominees) to secure that the affairs of a body are conducted in accordance with the charity’s wishes is, for the purposes of sections 28 to 35, to be treated as being in control of that body.

(2) For the purposes of sections (Duty of auditors etc. to report matters to OSCR)(5) and 67(2)—

(a) a person who is able to secure that the affairs of an institution are conducted in accordance with the person’s wishes is to be treated as being in control of the institution,

(b) a person who—

(i) is interested in shares comprised in the equity share capital of a body corporate of a nominal value of more than one-fifth of that share capital, or

(ii) is entitled (whether directly or through one or more nominees) to exercise, or control the exercise of, more than one-fifth of the voting power at any general meeting of a body corporate,

is to be treated as having a substantial interest in the body corporate.

(3) The rules set out in Part 1 of Schedule 13 to the Companies Act 1985 (c.6) apply for the purposes of subsection (2) as they apply for the purposes of section 346(4) (connected persons etc.) of that Act (and “equity share capital” and “share” have the same meanings in subsection (2) as they have in that Act).>

Section 103

Malcolm Chisholm

44 In section 103, page 61, line 20, at end insert—

<“company” means a company formed and registered under the Companies Act 1985 (c.6) or to which that Act applies as it applies to such a company,>

Malcolm Chisholm

45 In section 103, page 62, line 3, leave out <does not include minor> and insert <includes>

Members’ Bills Proposals

A Member who has lodged a proposal has the right to introduce a Member’s Bill to give effect to that proposal under Rule 9.14.12 of the Standing Orders provided:

  • the proposal has attracted 18 supporters which include members of at least half of the political parties or groups represented on the Parliamentary Bureau; and
  • the Scottish Executive has not given an indication under Rule 9.14.13 that it or Her Majesty’s Government will initiate legislation to give effect to the proposal.

The Bills page of the Parliamentary website shows the current status in this regard.

Names marked with an (*) are new names of support.

Karen Whitefield MSP: Proposed Christmas and New Year’s Day Trading in Scotland Bill —Proposal for a Bill to prohibit large retail premises from trading on Christmas Day and New Year’s Day. (lodged 11 May 2005)

A copy of the consultation paper together with copies of each response and a summary of all responses (including the conclusions drawn from those responses) are available in SPICe.

A copy of the statement of reasons on why further consultation is not required lodged on 1 December 2004 is available in the Scottish Parliament Information Centre (SPICe).

The Justice 1 Committee indicated on 12 January 2005 that they were satisfied with those reasons.

Supported by: Marlyn Glen, Brian Adam, Mr Alasdair Morrison, Dr Elaine Murray, Michael McMahon, Maureen Macmillan, Bill Butler, Kate Maclean, Des McNulty, Margaret Jamieson, Mr Kenneth Macintosh, Mrs Mary Mulligan, Christine May, Mike Pringle, Bristow Muldoon, Marilyn Livingstone, Jackie Baillie, Tommy Sheridan, Cathie Craigie, Mr John Home Robertson, Cathy Peattie, Scott Barrie, Janis Hughes, Ms Sandra White, Dr Jean Turner, Paul Martin, Dr Sylvia Jackson, Sarah Boyack, Ms Rosemary Byrne, Trish Godman, Elaine Smith, Mr Frank McAveety



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