Commentary on Provisions Inquiries Section 15 – Inquiries about former charities etc.
94.Section 28 of the 2005 Act gives powers to OSCR to make inquiries, for either general or particular purposes, about a charity, body or person falling within a paragraph of subsection (1). However, originally, OSCR was not able to make inquiries with regard to a charity, body or person who previously met the criteria in section 28(1) but who, at the time of making the inquiry, no longer did so. For example, where a charity had been removed from the Register and an allegation of misconduct by one of the former charity trustees came to light, OSCR was not able to make inquiries with regard to the body which was formerly a charity, in order to determine whether an application should be made to the Court of Session for an order under section 34(5)(ea) in respect of the former charity trustee. Similarly, if the charity had not just been removed from the Register but had been wound up and had ceased to exist as a body, OSCR previously could not make inquiries with regard to the time when the charity was operating.
95.This section of the Act changes that by inserting a new subsection (2A) into section 28, providing that it does not matter whether a charity, body or person continues to fall within a paragraph of subsection (1) – or continues to exist – for OSCR to make inquiries under that subsection. It also inserts a new subsection (4A) which provides in paragraph (a) that such inquiries must still relate to the period or periods in which the subject of the inquiry did fall within one or more of those paragraphs of subsection (1). The only exception to that is in relation to an inquiry concerning the protection of assets held by bodies which have been removed from the Register. Similarly, paragraph (b) of new subsection (4A) provides that a direction may not be given under section 28(3) of the 2005 Act unless it relates to the protection of assets held by bodies which have been removed from the Register. The ability to direct someone not to do something will not normally be relevant where the person is no longer involved with the charity or body concerned, but may still be relevant in a case where the change in status relates to the body itself and the body continues to hold protected charitable assets.