Two provisions of the Charities Act 2022 can have a bearing on national museums in relation to repatriation, as well as affecting non-nationals: sections 15 and 16, which amend the Charities Act 2011 to create broader powers for making ‘ex gratia’ transfers of charity property by charity trustees, i.e. transfers based on a moral obligation.
However, three years on, the Secretary of State has still not exercised their power to bring these provisions into force (as set out at s. 41 of the Act).
So despite the Charities Act 2022 having been passed by Parliament, these particular parts of it have never been ‘commenced’, meaning they currently have no effect.
The effect of sections 15 and 16 of the Charities Act 2022 would be to allow all charity trustees, whether restricted by governing legislation or not, to make ‘ex gratia’ decisions on a moral basis. There is logic in ensuring that charities are able to honour moral obligations without undue restriction.
The section 15 amendment would mean that charity trustees could make ex gratia applications of charity property if of ‘low value’ (depending on the income of the charity, to a maximum value of £20,000) without any need for authorisation from an external body like the Charity Commission.
The amendment set out in section 16 would mean the Charity Commission could authorise ex gratia transfers of potentially any charity property requested by trustees (as could the Attorney General or the courts) regardless of any other legislative prohibition.
