Commentary on provisions of Act Section 4: Power to remove charity trustees following an inquiry
Section 4 inserts into the Charities Act 2011 a substitute section 79 which deals with removal of charity trustees following an inquiry, and makes several consequential amendments. The revised section 79 makes it clear that the Commission can make a scheme in relation to a charity when there is an inquiry open and the Commission is satisfied that there is either misconduct or mismanagement or there is risk to charity property. The test for the Commission to exercise its power to remove a charity trustee, or other office holder, remains that there must be both misconduct or mismanagement and risk to charity property.
	The difference between the two tests is because it is considered that there must always be misconduct or mismanagement in order to remove a person from their position in the charity. However there are cases where the Commission considers it may need to make a scheme where only one limb of the test is met.
	Substitute section 79(5) and (6) enable the Commission to continue the removal process (and consequent automatic disqualification) where a person ceases to hold office. This is to enable the Commission to deal with cases where the person they have been seeking to remove resigns their position in order to avoid removal and consequent disqualification.
	Section 4 also replaces "privy to" with more modern language in substitute section 79. Equivalent provision is also made in sections 3, 9 and 10.