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Co-operatives and Community Benefit Societies Bill


Co-operatives and Community Benefit Societies Bill

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A

Bill

[AS AMENDED IN COMMITTEE]

To

enable the law relating to co-operatives and community benefit societies

registered under the Industrial and Provident Societies Act 1965 to be

amended so as to bring it into conformity with certain aspects of the law

relating to companies; to permit a registered society whose business is

conducted for the benefit of the community to provide that its assets are

dedicated permanently for that purpose; and for connected purposes.                                                                            

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and

consent of the Lords Spiritual and Temporal, and Commons, in this present

Parliament assembled, and by the authority of the same, as follows:—

 1     Community benefit societies: power to restrict use of assets

     (1)    The Treasury may by regulations make provision for enabling any community

benefit society, or any community benefit society of a prescribed kind, to

ensure that—

           (a)           assets of the society of a prescribed kind,

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           (b)           assets of the society specified by it in accordance with the regulations,

or

           (c)           all of the society’s assets,

            cannot be used or dealt with except in a case mentioned in subsection (2).

     (2)    The cases are—

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           (a)           where the use or dealing is, directly or indirectly, for a purpose that is

for the benefit of the community and is of a prescribed kind or, if no

kinds of purpose are prescribed under this paragraph, for any purpose

that is for the benefit of the community; or

           (b)           where the circumstances are such as may be prescribed.

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     (3)    Where under the regulations a society has ensured as mentioned in subsection

(1) as respects any of its assets, the assets concerned are “dedicated assets” for

the purposes of this section.

 
HL Bill 7653/2
 
 

Co-operatives and Community Benefit Societies Bill

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     (4)    Regulations under this section may, in particular—

           (a)           provide for the procedure by which a society may ensure as mentioned

in subsection (1);

           (b)           provide for such of a society’s rules as are of a prescribed kind to be

unalterable, or for them to be alterable only in prescribed circumstances

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or in circumstances specified in rules of a prescribed kind;

           (c)           provide that, in any circumstances prescribed under subsection (2)(b),

dedicated assets must be dealt with in a prescribed way;

           (d)           make provision for ensuring that any society, company or other person

to whom any dedicated assets are transferred in prescribed

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circumstances cannot use or deal with those assets except in a case

mentioned in subsection (2);

           (e)           provide for members of a society who lose property rights as a result of

the society’s ensuring as mentioned in subsection (1) to be

compensated for that loss (whether by payment of a prescribed amount

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or of an amount determined in a prescribed way or otherwise), subject

to such exceptions as may be prescribed;

           (f)           provide for the enforcement of provisions designed to ensure as

mentioned in subsection (1);

           (g)           make provision for the carrying out of investigations by persons

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appointed by a prescribed person;

           (h)           confer power on a prescribed person to require persons of a prescribed

description to provide him with information in order to enable or assist

him to perform any of his functions under the regulations;

           (i)           provide for restrictions on the use and disclosure of information

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obtained by any person in the performance of any function under the

regulations.

     (5)     Regulations under this section may—

           (a)           impose criminal liability;

           (b)           confer functions on a prescribed person;

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           (c)           confer jurisdiction on any court;

           (d)                         authorise a prescribed person to make rules, binding on persons of a

prescribed description, for the purpose of enabling or assisting him to

perform any of his functions under the regulations;

           (e)                         make provision as to the making, publication and enforcement of such

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rules;

           (f)           provide for a prescribed person to charge fees sufficient to meet the

costs of performing any of his functions under the regulations;

           (g)           modify, exclude or apply (with or without modifications) any

enactment or rule of law;

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           (h)           contain such incidental, consequential and supplemental provision as

the Treasury consider appropriate;

           (i)           make different provision for different cases.

     (6)    Regulations under this section may not create any new criminal offence

punishable with imprisonment for more than seven years.

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     (7)    The power to make regulations under this section is exercisable by statutory

instrument.

     (8)    No regulations may be made under this section unless a draft of the regulations

has been laid before Parliament and approved by a resolution of each House.

 

 

Co-operatives and Community Benefit Societies Bill

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     (9)    In this section—

                    “community benefit society” means a society registered (or deemed to be

registered) under the 1965 Act which fulfils the condition in section

1(2)(b) of that Act;

                    “enactment” includes an enactment comprised in—

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                  (a)                 an Act of the Scottish Parliament;

                  (b)                 subordinate legislation, whether made under an Act or an Act

of the Scottish Parliament; and

                      “prescribed” means prescribed by regulations under this section.

 2     Status of charitable societies to appear on correspondence etc

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After section 5 of the 1965 Act insert—

       “5A            Status of charitable societies to appear on correspondence etc

           (1)           Where a registered society is a charity and its registered name does not

include the word “charity” or the word “charitable”, the society must

state the fact that it is a charity in legible characters—

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                  (a)                 in all notices, advertisements and other official publications of

the society;

                  (b)                 in all business letters of the society;

                  (c)                 in all bills of exchange, promissory notes, endorsements,

cheques and orders for money or goods, purporting to be

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signed by or on behalf of the society;

                  (d)                 in all bills, invoices, receipts and letters of credit of the society;

and

                  (e)                 in all conveyances purporting to be executed by or on behalf of

the society.

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           (2)           Where a society’s registered name includes the words “elusen” or the

word “elusennol”, subsection (1) of this section shall not apply in

relation to any document which is wholly in Welsh.

           (3)           The statement required by subsection (1) of this section shall be in

English, except that, in the case of a document which is otherwise

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wholly in Welsh, the statement may be in Welsh if it consists of or

includes the word “elusen” or the word “elusennol”.

           (4)           Section 62 of this Act does not apply in respect of an offence committed

by a registered society under section 61 of this Act where the offence

consists of a failure to comply with this section.

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           (5)           Any officer of a registered society, or any other person acting on such a

society’s behalf, who—

                  (a)                 issues or authorises the issue of any document such as is

mentioned in subsection (1)(a), (b) or (d) of this section;

                  (b)                 signs or authorises to be signed on behalf of the society any

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document such as is mentioned in subsection (1)(c) of this

section; or

                  (c)                 executes or authorises to be executed on behalf of the society

any document such as is mentioned in subsection (1)(e) of this

section,

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Co-operatives and Community Benefit Societies Bill

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                         in which a statement required by subsection (1) is not made in

accordance with this section shall be liable on summary conviction to a

fine not exceeding level 3 on the standard scale.

           (6)           In the case of a conviction by virtue of paragraph (b) of subsection (5)

of this section, the officer or other person shall further be personally

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liable to the holder of any such document as is referred to in that

paragraph for the amount specified in the document unless that

amount is duly paid by the society.

           (7)           In this section “charity”—

                  (a)                 in relation to a society whose registered office is situated in

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England or Wales, has the same meaning as in the Charities Act

1993;

                  (b)                 in relation to a society whose registered office is situated in

Scotland, means a body established for charitable purposes only

(that expression having the same meaning as in the Income Tax

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Acts);

                  (c)                 in relation to a society whose registered office is situated in one

of the Channel Islands, means a society established for

charitable purposes only (“charitable purposes” having the

meaning given by the law of the Island in question).

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           (8)           In this section “conveyance” means any document for the creation,

transfer, variation or extinction of an interest in land.

           (9)           In subsection (5)(c) of this section the references to execution include—

                  (a)                 purported execution; and

                  (b)                 the doing of any act which (though not by itself execution)

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combined with other acts constitutes execution or purported

execution.”

 3     Capacity of society and power of committee to bind it

After section 7 of the 1965 Act insert—

“Capacity of society and power of committee to bind it

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       7A            Capacity of society not limited by its rules

           (1)           The validity of an act done by a registered society shall not be called

into question on the ground of lack of capacity by reason of anything in

the society’s registered rules.

           (2)           A member of a registered society may bring proceedings to restrain the

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doing of an act which but for subsection (1) of this section would be

beyond the society’s capacity; but no such proceedings shall lie in

respect of an act to be done in fulfilment of a legal obligation arising

from a previous act of the society.

           (3)           It remains the duty of the members of the committee of a registered

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society to observe any limitations on their powers flowing from the

society’s registered rules; and action by the members of the committee

which but for subsection (1) of this section would be beyond the

society’s capacity may only be ratified by the society by special

resolution.

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Co-operatives and Community Benefit Societies Bill

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           (4)           A resolution ratifying such action shall not affect any liability incurred

by a member of the committee or any other person; relief from any such

liability must be agreed to separately by special resolution.

           (5)           The operation of this section is restricted by section 7D of this Act

(application to charitable societies); and section 7E of this Act

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(transactions with members of the committee and connected persons in

excess of powers) has effect notwithstanding this section.

           (6)           In this section “special resolution” means a resolution passed by not

less than 75% of such members of the society as (being entitled to do so)

vote in person, or by proxy where the society’s rules allow proxies, at a

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general meeting of which not less than 21 days’ notice, specifying the

intention to propose the resolution, has been duly given according to

those rules.

           (7)           A copy of every special resolution for the purposes of this section

signed by the chairman of the meeting at which the resolution was

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passed and countersigned by the secretary of the society shall be sent to

the Authority and registered by it; and until that copy is so registered

the special resolution shall not take effect.

       7B            Power of committee to bind society

           (1)           In favour of a person dealing with a registered society in good faith, the

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power of the committee to bind the society, or authorise others to do so,

shall be deemed to be free of any limitation under the society’s

registered rules.

           (2)           For this purpose—

                  (a)                 a person “deals with” a society if he is a party to any transaction

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or other act to which the society is a party;

                  (b)                 a person shall not be regarded as acting in bad faith by reason

only of his knowing that an act is beyond the powers of the

committee under the society’s registered rules; and

                  (c)                 a person shall be presumed to have acted in good faith unless

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the contrary is proved.

           (3)           The references above to limitations on the powers of the committee

under the society’s registered rules include limitations deriving—

                  (a)                 from a resolution of the society in general meeting or a meeting

of any class of members; or

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                  (b)                 from any agreement between the members of the society or of

any class of members.

           (4)           Subsection (1) of this section does not affect any right of a member of

the society to bring proceedings to restrain the doing of an act which is

beyond the powers of the committee; but no such proceedings shall lie

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in respect of an act to be done in fulfilment of a legal obligation arising

from a previous act of the society.

           (5)           Nor does subsection (1) affect any liability incurred by a member of the

committee, or any other person, by reason of the committee’s exceeding

its powers.

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           (6)           The operation of this section is restricted by section 7D of this Act

(application to charitable societies); and section 7E of this Act

 

 

Co-operatives and Community Benefit Societies Bill

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(transactions with members of the committee and connected persons in

excess of powers) has effect notwithstanding this section.

       7C            No duty to enquire as to capacity of society or authority of committee

A party to a transaction with a registered society is not bound to

enquire as to whether it is permitted by the society’s registered rules or

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as to any limitation on the powers of the committee to bind the society

or authorise others to do so.

       7D            Application of sections 7A and 7B to charitable societies

           (1)           Sections 7A and 7B of this Act (capacity of society not limited by its

rules and power of committee to bind society) do not apply to the acts

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of a registered society which is a charity except in favour of a person

who—

                  (a)                 gives full consideration in money or money’s worth in relation

to the act in question; and

                  (b)                 does not know that the act is not permitted by the society’s

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registered rules or, as the case may be, is beyond the powers of

the committee,

                         or who does not know at the time the act is done that the society is a

charity.

           (2)           However, where such a society purports to transfer or grant an interest

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in property, the fact that the act was not permitted by the society’s

registered rules or, as the case may be, that the committee in connection

with the act exceeded any limitation on its powers under those rules,

does not affect the title of a person who subsequently acquires the

property or any interest in it for full consideration without actual notice

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of any such circumstances affecting the validity of the society’s act.

           (3)           In any proceedings arising out of subsection (1) of this section the

burden of proving—

                  (a)                 that a person knew that an act was not permitted by the

society’s registered rules or was beyond the powers of the

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committee, or

                  (b)                 that a person knew that the society was a charity,

                         lies on the person making that allegation.

           (4)           Where a registered society is a charity with its registered office situated

in England or Wales, the ratification of an act under section 7A(3) of this

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Act, or the ratification of a transaction to which section 7E of this Act

applies, is ineffective without the prior written consent of the Charity

Commissioners for England and Wales.

           (5)           In this section “charity”—

                  (a)                 in relation to a society whose registered office is situated in

40

England or Wales, has the same meaning as in the Charities Act

1993;

                  (b)                 in relation to a society whose registered office is situated in

Scotland, means a body established for charitable purposes only

(that expression having the same meaning as in the Income Tax

45

Acts);

                  (c)                 in relation to a society whose registered office is situated in one

of the Channel Islands, means a society established for

 

 

Co-operatives and Community Benefit Societies Bill

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charitable purposes only (“charitable purposes” having the

meaning given by the law of the Island in question).

       7E            Transactions with committee members and other persons in excess of

powers

           (1)           This section applies where a registered society enters into a transaction

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to which the parties include—

                  (a)                 a member of the committee of the society, or

                  (b)                 a person connected with such a member or a company with

whom such a member is associated,

                         and the committee of the society, in connection with the transaction,

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exceeds any limitation on its powers under the society’s registered

rules.

           (2)           The transaction is voidable at the instance of the society.

           (3)           Whether or not it is avoided, any such party to the transaction as is

mentioned in subsection (1)(a) or (b) of this section, and any member of

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the committee who authorised the transaction, is liable—

                  (a)                 to account to the society for any gain which he has made

directly or indirectly by the transaction; and

                  (b)                 to indemnify the society for any loss or damage resulting from

the transaction.

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           (4)           Nothing in the above provisions shall be construed as excluding the

operation of any other enactment or rule of law by virtue of which the

transaction may be called in question or any liability to the society may

arise.

           (5)           The transaction ceases to be voidable if—

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                  (a)                 restitution of any money or other asset which was the subject-

matter of the transaction is no longer possible; or

                  (b)                 the society is indemnified for any loss or damage resulting from

the transaction; or

                  (c)                 rights acquired bona fide for value and without actual notice of

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the committee’s exceeding its powers by a person who is not

party to the transaction would be affected by the avoidance; or

                  (d)                 the transaction is ratified by the society in general meeting in

such a way as the case may require.

           (6)           A person other than a member of the committee is not liable under

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subsection (3) of this section if he shows that at the time the transaction

was entered into he did not know that the committee was exceeding its

powers.

           (7)           This section does not affect the operation of section 7B of this Act in

relation to any party to the transaction not within subsection (1)(a) or

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(b) of this section.

           (8)           But where a transaction is voidable by virtue of this section and valid

by virtue of that section in favour of such a person, the court may, on

the application of that person or of the society, make such order

affirming, severing or setting aside the transaction, on such terms, as

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appear to the court to be just.

 

 

 
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