Governing Documents and Meetings

Published: 04/04/2016
Updated: 04/04/2016

Summary

Knowing what your governing document says and understanding what it means, having well run charity meetings and keeping good records of the meetings are all important factors in making sure that you are carrying out your general charity trustee duties set out in the 2005 Act.

A charity's governing document is the written statement that sets out its purpose, structure and describes how it will operate. The trustees must make sure that the charity complies with its governing document, which usually contains key information about:

  • What the charity exists to do (its charitable purposes)
  • What powers it has to further its charitable purposes
  • Who the trustees are, how many charity trustees there should be and how they are appointed and removed;
  • Whether the charity has any members and if so who can be a member
  • Rules about charity trustees' and members' (if any) meetings, how they are arranged and conducted and how decisions are made and recorded, etc;
  • How to change the governing document; and
  • How to close the charity down.

The name given to you charity's governing document will depend on its legal form.

The most common legal forms for charities are:

Legal form

Type of constitution or governing document

Company

Articles of association

Unincorporated association

Constitution

Trust

Trust deed

Scottish Charitable Incorporated Organisation (SCIO)

SCIO constitution

Community Benefit Society

Rules

Some governing documents are made up of a combination of items, such as standing orders, rules or supplemental deeds. The key to any governing document and to the overall governance of the charity are the charity’s purposes, which are the reason the charity exists.  

Charity trustees must make sure that: Legal duty.png

  • The activities of the charity advance the charitable purposes set out in the governing document.
  • The charity follows the rules of its governing document.
  • The charity’s assets are only used to advance the charitable purposes set out in the governing document.

 Good practice Good Practice.png

  • Every charity trustee has an up to date copy of the governing document. You should know what it says and understand what it means.
  • All new charity trustees get an induction pack which includes the governing document and up to date information about the activities of the charity.
  • When planning what the charity will do, you make sure the plans fit with what the governing document says you can do.
  • You read and review the governing document regularly to make sure it is still fit for purpose. You should do this at least once a year.

Can you change your governing document? Legal duty.png

If you do want to make changes to your governing document, you need to follow any rules about changes set out in your document. This flows from the general principle that charities have to follow the specific terms of their governing document.

If you want to make any changes to your governing document see our Making Changes to Your Charity page. You must tell us of any changes that you make and in some cases ask for our consent first. 

For example:
If you want to change the wording of charitable purposes in your governing document, you will need to get our consent first. This is because any changes to the charitable purposes could affect your ability to meet the charity test and to continue to be a charity. 

Some charities do not have the power in their governing document to make changes. If you are not sure whether you have the power to make changes you should get professional advice.

If you do not have the power to make changes you can apply to us to reorganise your charity. See our Charity reorganisation page for more details.

Charity trustees have collective responsibility for running the charity. Meetings are often the best way to make decisions and make sure that you keep all of the charity trustees informed. 

When and how meetings will be held will usually be set out in your governing document. You must follow the rules set out in your governing document about meetings. If you do not, any decisions you make could be invalid and you will not be acting in accordance with your charity trustee duties.

What should a governing document say about meetings? Good Practice.png

If your governing document does not mention meetings or is not clear about how meetings should be run, then you may want to add some rules about: 

  • When you have meetings and how often you have them.
    • Plan your charity trustee meetings so you can meet at the right time to look at the charity's accounts before submitting them to OSCR.
  • What type of meetings you have.
    • For example charity trustee meetings, annual general meetings (AGMs), membership meetings.
  • Who is entitled to vote at meetings and how proxies can be appointed.
  • Who can attend the meetings (just the charity trustees or members too?) and how many people have to be there to form a quorum

NOTE: if you are a SCIO or a company and want to use telephone or video conferencing you must state this in your governing document. 

A SCIO’s governing document is a constitution.

A company’s governing document is its Article of Association. For more information on the rules about meetings in company law, see the Companies House website. 

  • What you do if charity trustees have a conflict of interest.          
  • How you minute meetings and how long you keep records of the meetings.

    • It is a good idea to decide how long you will keep records of meetings and decisions, bearing in mind any other legal requirements you have to follow. For example, financial records must be kept for 6 years.

  • What to do if a charity trustee misses too many meetings and/or does not follow the rules.
  • What your governing document says about removing charity trustees.

What else do you need to think about for meetings?

  • Make sure everyone knows about the meeting – when and where it is.

    • Make sure you know who should or can attend the meeting.

  • Make sure everyone has the agenda and relevant papers – know what you are going to be talking about!
  • Do not be afraid to ask questions if you do not understand or something is not clear – you all have responsibility, not just the chair or the treasurer.
  • Follow the voting rules in your governing document – if you do not, any decisions you make could be invalid.
  • Assign someone to prepare minutes of the meeting – note the decisions taken and the reasons for them.
  • Make sure the minutes are agreed and approved at the next meeting.
  • Have clear action points – know who is responsible for them and for following up on them.

See Sources of help, advice and best practice for agenda and minutes templates.

Quorum

This is the minimum number or proportion of people (members, charity trustees or their proxies) that can vote and must be present or represented at a meeting to make the proceedings and any decisions taken valid.

For example:
Your governing document says that 50% of trustees must be present at a meeting. If you have 10 trustees in total but only four are present at the meeting, then you will not have a quorum and the meeting will not be valid.

If you are having trouble always getting enough charity trustees to form a quorum then you may need to recruit more charity trustees or look at alternative ways of holding meetings such as telephone or video conferencing. You may need to amend your governing document to do so.

If you fail to comply with these duties then this is misconduct and we do have powers to take action against charity trustees, where appropriate. Our response will be proportionate depending on the situation.

Where a charity trustee has acted reasonably and honestly it is unlikely to be treated as misconduct.

Find out more about what we can and cannot do and what to expect if we have a concern about your charity.

 


For case studies and advice please see our Good Governance pages

Here we set out the specific sections of charity law in Scotland relevant to each part of the guidance.  

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