Commentary on Provisions The schedule Paragraph 11 – Disclosure of information by and to OSCR: a designated religious charity
171.Section 65 of the 2005 Act allows OSCR to designate a charity that meets certain criteria as a designated religious charity (“DRC”). DRCs are exempt from some of the provisions in the 2005 Act in recognition of the fact that many religious bodies operate effective self-regulatory mechanisms by having an internal organisation with supervisory and disciplinary functions and therefore should not be over-regulated. As such, DRCs hold some regulatory responsibilities that are usually held by OSCR, and certain of OSCR’s regulatory functions do not apply in relation to DRCs, or to any component element of a DRC which is itself a charity. For example, the Church of Scotland is the DRC, and each congregation within the Church of Scotland that is registered as a standalone charity is a ‘component’ part or element of the DRC.
172.This paragraph inserts a new section 24A into the 2005 Act, which will assist both OSCR in the exercise of its functions and DRCs in relation to the exercise of the supervisory and disciplinary functions which exist in respect of their component parts. It does this by enabling OSCR and DRCs to share information with each other for these purposes.
173.This new information-sharing power could be used where OSCR holds information in relation to a component part of a DRC that should be shared with the DRC (for example, information received from an auditor or independent examiner in their report on a charity’s accounts). Originally, OSCR was unable to disclose this information to the relevant DRC, which in turn was then unable to fulfil its regulatory functions. This modification rectifies this.
174.Paragraph 11 also modifies section 25 of the 2005 Act which further ensures that any restrictions on disclosure of information (such as the restriction in section 29(4) of the 2005 Act preventing OSCR from disclosing information obtained in the course of its inquiries) do not prevent OSCR or DRCs from sharing information with each other for these purposes. The Act makes clear, however, that disclosures in contravention of the data protection legislation (as defined by section 3(9) of the Data Protection Act 2018) are not permitted.