Charities (Regulation and Administration) (Scotland) Bill: equalities impact assessment

Stage 4: Decision making and monitoring

Identifying and establishing any required mitigating action

Have positive or negative impacts been identified for any of the equality groups?

While no direct impacts have been identified, we have considered that there is potential, particularly with respect to the requirement on OSCR to publish the statements of account for all charities, to include charity trustee names in the Scottish Charity Register and to keep a publicly searchable record of removed charity trustees, that an individual’s protected characteristics might be inferred.

Is the policy directly or indirectly discriminatory under the Equality Act 2010^[28]?

There is no evidence, so far within this interim EQIA that the policy is directly or indirectly discriminatory under the Equality Act 2010.

If the policy is indirectly discriminatory, how is it justified under the relevant legislation?

N/A

If not justified, what mitigating action will be undertaken?

N/A

Describing how Equality Impact analysis has shaped the policy making process

The equality impact analysis has not had a wide-ranging impact on the development of the policy, as many of the issues highlighted by the analysis were already addressed and mitigated against in the policy design.

This impact assessment has highlighted a need to ensure that the facility for individuals to request their details not being published is fair and reasonable. While there is already a facility for individuals to apply for dispensation of their details being published this will have to be extended to include the new Trustee Registers, both internal and external, and the level of detail that may be published in the accounts. Any system for granting or denying these dispensations must be robust and consistent.

Provision to withhold principal address details and charity trustee/contact details where the inclusion of that information is "likely to jeopardise the safety or security of any person or premises" is already contained in section 3(4) of the Charities and Trustee Investment (Scotland) Act 2005^[29] and would continue to remain in effect. There may need to be further provisions added as the security dispensation does not necessarily cover other reasons for not wanting personal data being made public where there is no clear and present risk to the individual’s security.

Monitoring and Review

OSCR, will be responsible for monitoring and evaluating the policy.

A key policy driver for the proposals is to improve public trust and confidence in the charity sector and in OSCR as the regulator. OSCR conduct and publish the findings of periodic surveys^[30] which measure and quantify public perception of the regulator and trust in the sector. They will use future surveys to gauge the impact of the new measures in the Bill. Website analytics will record the number of views of charity accounts and any guidance, news stories or other items OSCR publish about the new measures. OSCR will also log telephone and email enquiries by subject. In the 2018 proposal paper^[31], in which the case was made for modernisation of the 2005 Act, OSCR identified what they considered to be the key impacts for the charity sector. The majority of the Bill proposals are of a technical nature. They will not require all charities to take new or additional steps and some proposals will only impact upon those charities directly affected.

For example, the power to issue positive directions will only affect charities served with a direction notice. In this case OSCR will record the frequency and nature of directions issued, the level of compliance, the number of review requests received, and whether the directions have resulted in the desired improvements. Directions will require the publication of inquiry reports against a charity’s Register entry and the increased visibility may generate enquiries from the public, media, MSPs etc. which will be logged.

Similarly automatic disqualification of charity trustees and others will only affect a very small number of charities faced with a potentially disqualified individual. But for those charities affected and for the individuals who are subject to disqualification, the impact is likely to be significant. OSCR will seek to measure any change in the rate at which individuals apply for waivers from disqualification, the proportion of applications that are approved, the numbers requesting a review or appealing OSCR’s decisions. Disqualification is automatic so usually OSCR only learn of disqualifications if a waiver is sought. Future surveys might measure charities’ awareness of changes in the disqualification criteria and whether they have been affected by them, but the latter is self-evidently a sensitive issue. The proposals that will affect all charities are those that will result publishing accounts and trustee database and public register. All charities are already required to prepare and lodge accounts annually. The timescale for doing so and the format and content of accounts will not change. Defaulting charities and those preparing accounts that do not comply with required standards will be more immediately visible to anyone searching the Register. OSCR will measure what effect publishing accounts, combined with the new power to remove defaulting charities that fail to engage with them, has upon the number of defaulting charities. For a small number of charities, publishing accounts including trustee names may give rise to concerns about personal safety. OSCR will monitor the number and outcome of dispensation requests received. Charities will be asked to ensure that accounts are publication-ready by not including content that may result in a data protection breach if published. In the early phase of implementation OSCR will conduct sample pre-publication checks to ensure that their messaging is effective. Since charity accounts are already in the public domain (available on request) this is a matter of good practice that they should be following in any case. By drawing attention to this OSCR hope to drive up the standard of accounts and reports.

Implementation of a trustee database represents the most significant additional duty upon charities to ensure that it is populated with the details of their trustees and kept accurate and up to date. Charitable companies and Scottish Charitable Incorporated Organisations (SCIOs) are already required to maintain their own registers of directors/trustees containing most of the information the database will collect. The impact will be greatest upon charities with a large trustee body and/or a high turnover of trustees. OSCR will monitor compliance with the requirement to provide trustee data and will undertake selective sampling (randomised or risk-based) to check compliance and accuracy. OSCR will monitor enquiries, requests for assistance, views of guidance and requests for dispensations. They will also monitor any change in the number of subject access requests. It is likely that the database functionality will be developed over time and that the user interface will be improved through experience. OSCR will monitor any trends and frequently occurring difficulties and refine the system based upon user feedback. As with other online interactions, OSCR will continually review accessibility and provide alternative means for individuals and charities facing difficulty with digital capacity.