Commentary on Provisions Disqualification from being charity trustee etc. Section 7 – Record of persons removed from office
45.Under section 34(5)(e) of the 2005 Act, the Court of Session can remove a person from office as a charity trustee in certain circumstances. A person can also be removed from being concerned in the management or control of a body which is controlled by a charity, or from a body which has been misrepresenting itself as a charity. In addition, under section 34(5)(ea) of the 2005 Act, the Court of Session can make an order under which the person is treated as having been removed from a role despite not actually being so removed (for example, because the person resigned in an effort to stave off further proceedings).
46.These orders can be granted where—
	there is or has been misconduct in the administration of a charity or a body controlled by a charity,
	it is necessary or desirable to act for the purpose of protecting a charity’s property or securing a proper application of that property for its purposes, or
	a body which is not a charity has been misrepresenting itself as being one.
47.Beyond the immediate impact of an order for any person who is still in office at the date of granting of the order, a key consequence is that persons who are subject to a removal order or a deemed removal order under either section 34 or the predecessor legislation are automatically disqualified from being a charity trustee (see section 69(1)(c) of the 2005 Act). Such persons can be granted a waiver but the granting of a waiver is at OSCR’s discretion. Waivers can be granted so as to apply to all charities, to particular types of charity, or to a named charity only.
48.Further, under section 6 of the Act, the disqualification rules which apply to charity trustees are extended to apply to certain senior management functions. As such, having been removed from office will become relevant to whether those persons are eligible to hold certain key employment roles in charities (although the rules about waivers are extended by the Act in parallel with the extension of the disqualification criteria – see paragraph 41 of these notes).
49.Section 7 of the Act therefore introduces a requirement for OSCR to keep and maintain a record of persons who have been removed from office in the way described above. As a result of the change made to section 34 of the 2005 Act by this section of the Act, this will equally cover those who are deemed to have been removed from office.
50.Inserted section 70ZA(2) of the 2005 Act sets out the information that the record must contain. Again, when read with section 34(5)(ea) of the 2005 Act as amended by this Act, references to removal should be read (where applicable) as references to deemed removal. The information to be held on this record is otherwise self-explanatory and includes details of any partial waiver that has been granted (i.e. a waiver in respect of a particular type of charity, for a named charity only, or a waiver which relates only to holding senior management functions). In contrast, where a waiver has been granted in unrestricted terms for acting as a charity trustee of any charity, the person’s details will instead be removed from the record by virtue of inserted section 70ZA(3). OSCR will also be able to remove a record where the person has died.
51.Inserted section 70ZB of the 2005 Act provides that OSCR is not only to keep this record but is to make it publicly searchable. This will assist charities in their efforts to check whether individuals they wish to invite to become charity trustees or senior staff members are eligible to act. However, it will only provide information in relation to one aspect of the disqualification test – namely, section 69(1)(c). Other matters continue to be capable of verification by other means (including searching the Companies House register of disqualified directors, a Disclosure Scotland check relating to convictions, and searching the record of removed charity trustees provided by the Charity Commission for England and Wales).
52.The record will be searchable but will not be provided as a document which can be browsed. As such, charities will be able to carry out a search where they have a specific person whose eligibility they want to check, but it will not be possible to simply generate a list of all removed persons without already knowing their details. Provision is also made for certain information to be redacted or capable of being redacted in the interests of privacy. This includes the ability to redact the existence of an entry altogether where OSCR is satisfied (on an application made to it) that having that entry appear in search results is likely to jeopardise the safety or security of any person or premises.
53.Where such an application to redact the existence of an entry is made, changes made by this section of the Act to sections 71 and 72 of the 2005 Act mean that the decision on that application can be the subject of a request for a review (and onwards appeal). It also means that the effect of the decision is suspended pending the outcome of the review/appeal process.
54.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 GDPR and the Data Protection Act 2018. The provision to keep and maintain a record of persons removed from office and to make that record publicly searchable as described above creates a legal obligation for the purposes of Article 6 of the UK GDPR, which operates subject to the constraints and dispensation mechanism described above.