The effect of amendment 21 would be to extend the definition of "the advancement of education" in the list of charitable purposes in the bill to recognise the significant contribution that youth work makes through the provision of non-formal education opportunities to promote and support the development of young people.
Amendment 21 is similar to an amendment that I lodged at stage 2. When the Deputy Minister for Communities spoke to that amendment, she suggested that I had not provided an adequate definition of youth work. She also expressed concern that the amendment, rather than widening the definition of education, might narrow it by excluding other types of non-formal education. Clearly, that is the opposite of what I was trying to achieve.
Amending the definition of education in the bill's list of charitable purposes would complement the Scottish Executive's commitment, which it made in "A Partnership for a Better Scotland", to develop and launch a national youth work strategy before the end of the current session of Parliament. Amendment 21 should be seen in that context. If we extend the definition of education, we will not only recognise the significant contribution that youth work makes but help it to meet future challenges by making it more attractive for external funders to support and nurture the sector.
I am aware that section 7(2)(m) in the list of charitable purposes refers to
"any other purpose that may reasonably be regarded as analogous to any of the preceding purposes."
It may well be that the Minister for Communities thinks that that is enough to cover the issue that I raise. If so, I will welcome his further reassurance on the point. It would also be helpful if he could confirm that his understanding of the definition of education includes not just schools but education in its widest sense. That will go a long way to clarifying the point that I raise.
Amendments 2 and 47 deal with amateur sport, and I know that other members will speak to them extensively. There has been a lot of lobbying from sporting organisations about the outmoded and outdated use of the word "amateur", and we need to consider the matter. Amendments 2 and 47 are worthy of consideration and support.
I move amendment 21.
On amendments 2 and 47, I hope that all will end satisfactorily. As Scott Barrie said, there is a great deal of concern in the sporting world about the use of the word "amateur". Many British, Scottish and international sporting bodies have dropped the word from their titles because it is an outdated term. I lodged amendment 2, which seeks to leave out the word "amateur", but Karen Whitefield subsequently lodged amendment 47, which seeks to leave out the term "amateur sport" and include the term "public participation in sport". Amendment 47 is a reasonable amendment, which achieves what I was trying to achieve. I understand public participation to mean people who are on the park doing the thing, not people who are watching it on the telly in the bar or people in the crowd. I assume that that is how "public participation" is to be understood. I am content to support amendment 47 rather than amendment 2.
The Executive's amendments 3 and 4 seek to include in the list of charitable purposes the "organisation of recreational activities" as well as the provision of facilities. They stem from an amendment that I lodged at stage 2 and withdrew—because I am a nice sort of guy—under pressure from the deputy minister, so I am pleased to have converted her to the right cause. I will support amendments 3 and 4 because they help to deal with the issue that I raise in amendment 48. The bill says that a sport must involve "physical skill and exertion". Personally, I have little physical skill but I used to be quite good at exertion; brute force and ignorance are what one needs for middle-distance running, and I had that. I do not have physical skill, but I admire
The Communities Committee did much good work on the charitable purposes and greatly improved them. Even the English have copied some of our proposed charitable purposes, so if we can educate them, we are really in business.
I lodged amendment 47 following representations by sportscotland and the Scottish Sports Association, which expressed concerns about the use of the term "amateur". As Scott Barrie said, the term "amateur" is outmoded and has no place in a modern sporting context. Sport seeks to improve how it works and part of that involves professionalisation of the governing bodies and the employment by organisations of qualified coaches and youth and volunteer development officers, for example. Far from holding back good sporting activities, those people are helping to increase participation and to ensure that participants develop their potential to the full.
Of course, a strict interpretation of the term "amateur" would rule out clubs that use professional coaches and other professionals to develop their sports. That would have a negative effect on the future of sport in Scotland. It is right that such activities are allowed to continue and that we encourage sport in Scotland in that.
The term "amateur" is little used today. The Commonwealth Games Council for Scotland used to confine competition in games to amateur athletes, but that requirement has been removed. The Olympic movement, which was founded on amateur participation, has also reflected changes. The word "amateur" cannot be found in today's Olympic charter. The list of other sports professional bodies that have done likewise goes on.
If we are serious about helping Scottish sport to develop in the 21st century, we must reflect how sport in the 21st century operates and recognise the benefits of participation in sport. Removal of the term "amateur sport" to be replaced by the words "public participation in sport" would be a sensible and positive step forward, on which I thank sportscotland and the Scottish Sports Association for their support. I urge members to support amendment 47.
I advise members that, as little time is left to complete this group and the next group, I exercise my rights under rules 9.8.4A(c) and possibly (a) of standing orders to extend the timetable at the end of this section. Members should understand that if we do not make up the time on later groups, that will impact on the final debate on the bill.
The bill was amended at stage 2 to include a charitable purpose that would cover charities that are recognised under the Recreational Charities Act 1958. Amendments 3 to 5 respond to the concern that was expressed at stage 2 that that purpose was not broad enough to cover bodies that arrange recreational activities but do not own the grounds on which they take place. The deputy minister agreed that we would consider that further. Having done so, we believe that the purpose should be extended to include organising recreational activities as well as providing facilities.
Amendment 21, in the name of Scott Barrie, is similar to one that he lodged at stage 2. We support what he is trying to do and fully recognise the importance of non-formal education and youth work. The purpose of "the advancement of education" already covers all forms of education, including non-formal education through youth work, as proposed in the amendment. Many charities that have a wide range of education purposes are already charities under the current law, and we certainly intend that that will continue. We are concerned that referring to specific forms of education in the bill could lead to the inference that other forms of education are not included. That is not to detract from the value that we place on youth work or non-formal education; it is merely that we do not wish that purpose to be artificially restricted. I hope that I have reassured Scott Barrie that our intention is certainly not to prevent bodies that provide non-formal education and youth work from becoming charities. I fully support the role that they play and repeat that non-formal education and youth work are already covered by the purposes.
"the advancement of amateur sport".
The inclusion of amateur sport as a charitable purpose originated as an extension of "the advancement of health" purpose. For that reason, the current definition of which types of sport are considered to be charitable purposes is the same as that in the bill as drafted. They are restricted to sports that involve "physical exertion and skill". We
I am not aware that that is relevant. However, if information is available to me, I will obviously give it to members later.
The current provision would exclude sports such as chess, snooker or darts. Amendment 48 would allow those activities to be charitable under the sports purpose, and we want to resist the amendment because we are keen to maintain the link with the encouragement of healthy activity.
The word "amateur" was included in the purpose to reflect the fact that it is the promotion of sporting activity by the general public that makes sport charitable. We do not believe that the use of the word "amateur" bars a club from employing a professional to coach and play for a team, as long as that is done to advance amateur sport. We understand the arguments that have been made by sportscotland and others about the use of the word "amateur" being outmoded, but we do not believe that amendment 2, which would remove the word "amateur", is the whole answer. That would not mean that high-profile professional sports clubs could automatically be charities, as they would in any event be barred by the asset distribution test in section 7(3)(a), but it could allow bodies that promote or support such clubs to be charities. We do not believe that those bodies are, or should be, charities. Instead, we prefer the wording that is used in amendment 47, which is aimed more clearly at the reasons why sport is a charitable purpose—that is, it is as an extension of "the advancement of health" purpose and bodies that encourage the general public to get involved in sport should have charitable status.
I will be terribly brief.
I cannot accept the minister's position with respect to amendment 48. I understand that snooker is a sport, but the physical exertion that is involved is tiny—men simply lean over a table and push a little ball about. Therefore, the word "or" is more appropriate than the word "and". [Interruption.] I cannot see the definition.
I would like members' attention again. My second point is on amendment 47. I have only a tiny amount of time to speak—I will then let another member say something. I have difficulties with Karen Whitefield's proposal that the purpose should be "public participation in sport". If a person stands and shouts their lungs out in the hope that Scotland will score a goal, that is public participation in sport in my book, but I would not say that it is a charitable purpose. The definition is slack. I was content with the "amateur sport" wording that we started with and to leave it to OSCR to decide whether there was too much professionalism and therefore whether something was no longer a charity.
I have considerable sympathy with amendment 47, which fits in well with the Executive's declared policy of encouraging more sports participation by the general public. However, will the minister tell us whether the removal of the word "amateur" might open up a loophole that some people might exploit? I accept that the lines between amateurism and professionalism are not as clearly defined as they used to be, but some sports clubs are professional by nature. For example, most senior football clubs are professional clubs and some are big business. Not many clubs, if any, make a handsome profit or pay a handsome dividend to their shareholders, but some pay out huge—in some cases excessive—amounts of money to their players. As I understand it, currently even a professional football club can set up a separate charitable trust for a charitable purpose, which might fall into any of the categories in section 7(2), such as the advancement of sport or the relief of poverty. However, I question whether the professional activities of such clubs should be allowed to have charitable status. I ask the minister to tell us whether amendment 47 might create a loophole in that regard, but apart from that I am very much in agreement with the spirit of amendment 47.
I listened to what the minister said about the value that the Executive places on youth work and other forms of non-formal education and I take on board his assurance that such areas will not be excluded from the definition of charitable purpose and that non-formal education will be fully encompassed by section 7(2)(b), which provides for the charitable purpose of "the advancement of education".
On that basis, I ask the Parliament's agreement to withdraw amendment 21.
Division number 2
For: Arbuckle, Mr Andrew, Baillie, Jackie, Baird, Shiona, Baker, Richard, Ballance, Chris, Ballard, Mark, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brown, Robert, Butler, Bill, Byrne, Ms Rosemary, Canavan, Dennis, Chisholm, Malcolm, Craigie, Cathie, Curran, Ms Margaret, Deacon, Susan, Eadie, Helen, Ferguson, Patricia, Finnie, Ross, Fox, Colin, Glen, Marlyn, Godman, Trish, Gorrie, Donald, Harper, Robin, Harvie, Patrick, Henry, Hugh, Home Robertson, John, Hughes, Janis, Jackson, Dr Sylvia, Jackson, Gordon, Jamieson, Cathy, Jamieson, Margaret, Kerr, Mr Andy, Lamont, Johann, Leckie, Carolyn, Livingstone, Marilyn, Lyon, George, Macdonald, Lewis, Macintosh, Mr Kenneth, Maclean, Kate, Macmillan, Maureen, Martin, Paul, May, Christine, McAveety, Mr Frank, McCabe, Mr Tom, McMahon, Michael, McNeil, Mr Duncan, McNeill, Pauline, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Munro, John Farquhar, Murray, Dr Elaine, Oldfather, Irene, Peacock, Peter, Peattie, Cathy, Pringle, Mike, Purvis, Jeremy, Radcliffe, Nora, Robson, Euan, Ruskell, Mr Mark, Scott, Eleanor, Scott, Tavish, Smith, Elaine, Smith, Iain, Smith, Margaret, Stephen, Nicol, Stone, Mr Jamie, Turner, Dr Jean, Wallace, Mr Jim, Watson, Mike, Whitefield, Karen, Wilson, Allan
Against: Adam, Brian, Aitken, Bill, Brocklebank, Mr Ted, Crawford, Bruce, Cunningham, Roseanna, Davidson, Mr David, Douglas-Hamilton, Lord James, Ewing, Fergus, Ewing, Mrs Margaret, Fabiani, Linda, Fergusson, Alex, Fraser, Murdo, Gallie, Phil, Gibson, Rob, Goldie, Miss Annabel, Grahame, Christine, Hyslop, Fiona, Ingram, Mr Adam, Johnstone, Alex, MacAskill, Mr Kenny, Marwick, Tricia, Mather, Jim, Matheson, Michael, Maxwell, Mr Stewart, McFee, Mr Bruce, McGrigor, Mr Jamie, McLetchie, David, Milne, Mrs Nanette, Mitchell, Margaret, Monteith, Mr Brian, Morgan, Alasdair, Neil, Alex, Scanlon, Mary, Scott, John, Stevenson, Stewart, Swinburne, John, Swinney, Mr John, Welsh, Mr Andrew, White, Ms Sandra
I will try to be quick. Like the other amendments that I have lodged, my amendments in the group originate from the Scottish Council for Voluntary Organisations, which is the representative body of the charitable and voluntary sector in Scotland. My amendments cover three broad issues. I expect some of them to be resisted as the arguments have been rehearsed previously, but I hope that some of them will elicit a little more sympathy.
Amendment 49 would change the charity test in one small way in that a body would fail the charity test if its income or property—rather than its property alone—were distributed, or if its constitution allowed for its income or property to be distributed. The amendment would provide an additional safeguard and I hope that it will be seen as a constructive addition to the bill.
Amendments 50 and 51 are about the principle of independence. It is important to note that in general the bill has managed to achieve a central place for the idea that charities are independent. The bill has managed to preserve that principle, but certain aspects of the provisions could be improved. Independence for charities should mean independence from government at all levels. Amendment 50 would add local authorities, so that if charities were under the direct control of local authorities, that situation would have to change. It seems no more reasonable that local authorities should control an organisation that has charitable status than that other levels of government should do so. It is important to note that the amendment would not change the power of ministers to exempt certain categories, so that where councils would be unable to continue to provide a certain level of services if charitable status were lost, the matter could be addressed through ministerial order.
Amendment 51 deals not with direct control but with the appointment of trustees. The argument will be familiar to those who have been involved in the consideration of the bill. The idea comes from
Finally, amendment 52 is about the disposal of property. The amendment reflects an important principle. It would ensure that property that may have been given to an organisation specifically because it had charitable status should not be distributed to non-charitable bodies. The SCVO has expressed serious concerns about the ministerial power on the issue and I am happy to give voice to those concerns in the chamber.
I move amendment 49.
Presiding Officer, this is a series of significant amendments so, although I shall try to speak at a canter, I hope that you will allow me leeway to make the points that need to be made.
Amendment 18 ensures that ministers can alter any enactment for the purposes of preventing a body from failing the charity test because its constitution allows asset distribution for a non-charitable purpose, as set out in section 7(3)(a), as well as because its constitution allows ministers to control its activities, as set out in section 7(3)(b). That will allow ministers to remove or alter any power in an enactment that allows a body to distribute its assets for a non-charitable purpose and will therefore allow it to meet the charity test.
Section 7(3)(a) prevents a body with a constitution that allows it to distribute or otherwise apply any of its property from being a charity. Amendment 49 would add to that section any income as defined under paragraphs (a) to (c) of section 19(1). That is unnecessary as the definition of property already includes any income the body receives. The addition of a separate reference to income in section 7 could cast doubt on what is meant by property elsewhere in the bill.
Section 19 includes a specific reference to the type of property that is subject to the section, because it is intended to ring fence the charitable assets and any income accrued from charitable assets of a body that is removed from the register, so that they can continue to be used for charitable purposes, and to exclude assets acquired after the body ceased to be charitable. That provision is not relevant to section 7. Any income received by a charity would automatically become the property of the charity and would be a charitable asset, so
Patrick Harvie is right to say that there is an important debate to be had on the issue of independence and its significance to the sector. Amendment 50 would mean that a body would fail the charity test if a local authority had a power of direction over it. We believe that the independence of such bodies at local level is best assured by the trustee duties to act in the interest of the charity. Those will be strengthened if the Parliament agrees to amendment 57, in the name of Donald Gorrie, which deals with conflicts of interest.
Amendment 51 reflects the recommendation in the McFadden report that only a third of a charity's trustees should be allowed to be appointed by a third party. We have always argued and—Patrick Harvie may not be surprised to note—we continue to believe that what is important is not how a charity trustee is appointed but how they behave once in position. Amendment 57 provides further reassurance that if a conflict of interest arises, a trustee should put the interests of the charity first or refrain from taking part in any discussion or decision.
Amendment 52 would prevent ministers from exempting bodies from the asset distribution test that I have outlined. The amendment would prevent the five national collections non-departmental public bodies from remaining charities. During discussions of the status of those bodies at stage 1, it was argued that charitable status was extremely important to them and to Scotland, and that it should be protected. It was also argued that, because of the national importance of the collections that they hold, control of those collections should remain in the hands of ministers. The constitutions of the bodies provide that, if they cease to exist, their assets revert to ministers. That provides valuable protection, ensuring that nationally important collections remain in the hands of the nation. We would resist any change to the provision.
Amendment 52 would prevent the five bodies from retaining their status as charities. If amendment 51 is not agreed to, amendment 52 will fall. However if amendment 51 is agreed to and amendment 52 is not, some of the five national collections bodies will fail the test, because ministers appoint their trustees.
Amendment 63 would insert in section 103 a definition of a public body. The only references in the bill to public bodies relate to co-operation in section 20 and information-sharing powers in section 24. The definition that is set out in the amendment could cause problems for the operation of those sections, as it would exclude any public body established by enactment, including many regulators that also oversee
I have two further points to make about independence. First, direction at ministerial level is enshrined in law, so it is distinct from local authority powers of direction. Secondly, any exemption that is applied by ministers will be subject to affirmative decision by the Parliament. I hope that that gives members the comfort that they seek. Clearly, this is an issue that has exercised members' minds from the bill's early stages.
I ask Patrick Harvie to withdraw amendment 49 and not to move the other amendments in his name. I ask the chamber to support amendment 18.
Division number 3
For: Adam, Brian, Baird, Shiona, Ballance, Chris, Ballard, Mark, Byrne, Ms Rosemary, Crawford, Bruce, Cunningham, Roseanna, Ewing, Fergus, Ewing, Mrs Margaret, Fabiani, Linda, Fox, Colin, Gibson, Rob, Grahame, Christine, Harper, Robin, Harvie, Patrick, Hyslop, Fiona, Ingram, Mr Adam, Leckie, Carolyn, MacAskill, Mr Kenny, Marwick, Tricia, Matheson, Michael, Maxwell, Mr Stewart, McFee, Mr Bruce, Morgan, Alasdair, Neil, Alex, Ruskell, Mr Mark, Scott, Eleanor, Stevenson, Stewart, Sturgeon, Nicola, Swinburne, John, Swinney, Mr John, Turner, Dr Jean, Welsh, Mr Andrew, White, Ms Sandra
Against: Aitken, Bill, Arbuckle, Mr Andrew, Baillie, Jackie, Baker, Richard, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brocklebank, Mr Ted, Brown, Robert, Butler, Bill, Canavan, Dennis, Chisholm, Malcolm, Craigie, Cathie, Curran, Ms Margaret, Davidson, Mr David, Deacon, Susan, Douglas-Hamilton, Lord James, Eadie, Helen, Ferguson, Patricia, Fergusson, Alex, Finnie, Ross, Fraser, Murdo, Gallie, Phil, Glen, Marlyn, Godman, Trish, Goldie, Miss Annabel, Gorrie, Donald, Henry, Hugh, Home Robertson, John, Hughes, Janis, Jackson, Dr Sylvia, Jackson, Gordon, Jamieson, Cathy, Jamieson, Margaret, Johnstone, Alex, Kerr, Mr Andy, Lamont, Johann, Livingstone, Marilyn, Lyon, George, Macdonald, Lewis, Macintosh, Mr Kenneth, Maclean, Kate, Macmillan, Maureen, Martin, Paul, May, Christine, McAveety, Mr Frank, McCabe, Mr Tom, McGrigor, Mr Jamie, McLetchie, David, McMahon, Michael, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Milne, Mrs Nanette, Mitchell, Margaret, Monteith, Mr Brian, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Munro, John Farquhar, Murray, Dr Elaine, Oldfather, Irene, Peacock, Peter, Peattie, Cathy, Pringle, Mike, Purvis, Jeremy, Radcliffe, Nora, Robson, Euan, Scanlon, Mary, Scott, John, Scott, Tavish, Smith, Elaine, Smith, Iain, Smith, Margaret, Stephen, Nicol, Stone, Mr Jamie, Wallace, Mr Jim, Watson, Mike, Whitefield, Karen, Wilson, Allan
Division number 4
For: Baird, Shiona, Ballance, Chris, Ballard, Mark, Byrne, Ms Rosemary, Fox, Colin, Harper, Robin, Harvie, Patrick, Leckie, Carolyn, Ruskell, Mr Mark, Scott, Eleanor
Against: Adam, Brian, Aitken, Bill, Arbuckle, Mr Andrew, Baillie, Jackie, Baker, Richard, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brocklebank, Mr Ted, Brown, Robert, Butler, Bill, Canavan, Dennis, Chisholm, Malcolm, Craigie, Cathie, Crawford, Bruce, Cunningham, Roseanna, Curran, Ms Margaret, Davidson, Mr David, Deacon, Susan, Douglas-Hamilton, Lord James, Eadie, Helen, Ewing, Fergus, Ewing, Mrs Margaret, Fabiani, Linda, Ferguson, Patricia, Fergusson, Alex, Finnie, Ross, Fraser, Murdo, Gallie, Phil, Gibson, Rob, Glen, Marlyn, Godman, Trish, Goldie, Miss Annabel, Gorrie, Donald, Grahame, Christine, Henry, Hugh, Home Robertson, John, Hughes, Janis, Hyslop, Fiona, Ingram, Mr Adam, Jackson, Dr Sylvia, Jackson, Gordon, Jamieson, Cathy, Jamieson, Margaret, Johnstone, Alex, Kerr, Mr Andy, Lamont, Johann, Livingstone, Marilyn, Lyon, George, MacAskill, Mr Kenny, Macdonald, Lewis, Macintosh, Mr Kenneth, Maclean, Kate, Macmillan, Maureen, Martin, Paul, Marwick, Tricia, Mather, Jim, Matheson, Michael, Maxwell, Mr Stewart, May, Christine, McAveety, Mr Frank, McCabe, Mr Tom, McFee, Mr Bruce, McGrigor, Mr Jamie, McLetchie, David, McMahon, Michael, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Milne, Mrs Nanette, Mitchell, Margaret, Monteith, Mr Brian, Morgan, Alasdair, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Munro, John Farquhar, Murray, Dr Elaine, Neil, Alex, Oldfather, Irene, Peacock, Peter, Peattie, Cathy, Pringle, Mike, Purvis, Jeremy, Radcliffe, Nora, Robson, Euan, Scanlon, Mary, Scott, John, Scott, Tavish, Smith, Elaine, Smith, Iain, Smith, Margaret, Stephen, Nicol, Stevenson, Stewart, Stone, Mr Jamie, Sturgeon, Nicola, Swinburne, John, Swinney, Mr John, Wallace, Mr Jim, Watson, Mike, Welsh, Mr Andrew, White, Ms Sandra, Whitefield, Karen, Wilson, Allan
Abstentions: Turner, Dr Jean