The Constitution of The Soundhouse Organisation
In this constitution:-
1.1 “the 2005 Act” means the Charities and Trustee Investment (Scotland) Act 2005;
1.2 “the Accounts Regulations” means The Charities Accounts (Scotland) Regulations 2006;
1.3 “address” means a postal address or, for the purposes of electronic communication, an e-mail address in each case registered with the SCIO;
1.4 “charity” means a body which is either a “Scottish charity” within the meaning of section 13 of the 2005 Act or a “charity” within the meaning of section 1 of the Charities Act 2006, providing (in either case) that its objects are limited to charitable purposes; and
1.5 “charitable” and “charitable purpose” means a charitable purpose under section 7 of the 2005 Act which is also regarded as a charitable purpose in relation to the application of the Taxes Acts;
1.6 words importing one gender shall include all genders, and the singular includes the plural and vice versa;
1.7 references in this constitution to the 2005 Act and other statutory regulations should be taken to include:-
1.7.1 any statutory provision which adds to, modifies or replaces that Act or the regulations; and
1.7.2 any statutory instrument issued in pursuance of that Act or in pursuance of any statutory provision falling under paragraph 90.1 above.
Type of organisation
2 The organisation will, upon registration, be a Scottish Charitable Incorporated Organisation (the “SCIO”).
Scottish principal office
3 The principal office of the SCIO will be in Scotland (and must remain in Scotland).
4 The name of the SCIO is “The Soundhouse Organisation”.
5 The SCIO is established for charitable purposes only and the SCIO’s principal purpose is for the benefit of the public in Scotland and elsewhere to advance:-
5.1 education; and
5.2 the arts, heritage and culture;
by the cultivation, development and promotion of the performing arts, and in particular live music in all its aspects by the hosting of live music performances and any other such ways as the SCIO through its Trustees shall determine from time to time and by any other charitable means.
6 The SCIO has power to do anything which is calculated to further its purposes or is conducive or incidental to doing so, as stated in Section 50(5) of the 2005 Act.
7 No part of the income or property of the SCIO may be paid or transferred (directly or indirectly) to the members/trustees – either in the course of the SCIO’s existence or on dissolution – except where this is done in direct furtherance of the SCIO’s charitable purposes, and in accordance with this constitution and the terms of the 2005 Act.
8 The structure of the SCIO consists of the trustees who are also the SCIO’s only members and comprise the SCIO’s board of trustees (the “Trustee/Trustees”). The only persons eligible to be members of the SCIO are its charity trustees. Membership of the SCIO cannot be transferred to anyone else. Any member and Trustee who ceases to be a Trustee automatically ceases to be a member of the SCIO.
Liability of Trustees (members)
9 The Trustees (the only members) of the SCIO have no liability to pay any sums to help tomeet the debts (or other liabilities) of the SCIO if it is wound up; accordingly, if the SCIO is unable to meet its debts, the Trustees will not be held responsible.
10 The Trustees have certain legal duties under the 2005 Act; and clause 9 does not exclude (or limit) any personal liabilities that might incur if they are in breach of those duties or in breach of other legal obligations or duties that apply to them personally.
Qualifications for Charity Trusteeship
11 Charity Trusteeship is open to:-
11.1 any person aged 16 or over; and
11.2 who subscribes to the purposes of the SCIO and wishes to see them fulfilled.
Application for Charity Trusteeship
12 Any person who wishes to become a Trustee must sign a written application for trusteeship.
13 The application will then be considered by the Board at its next Board meeting.
14 The Board may, at its discretion, refuse to admit any person, to trusteeship.
15 The Board must notify each applicant promptly (in writing, which includes by e-mail) of its decision on whether or not to admit him to trusteeship.
16 A person will not be eligible for election or appointment to the Board if he is disqualified from being a charity trustee under the 2005 Act.
Subscription to the SCIO
17 No subscription will be payable.
Number of Charity Trustees
18 The maximum number of Trustees is fifteen.
19 The minimum number of Trustees is six.
Initial Charity Trustees
20 The individuals who signed the Charity Trustee declaration forms which accompanied the application for incorporation of the SCIO shall be deemed to have been appointed as Trustees with effect from the date of incorporation of the organisation as a SCIO and its entry on the Scottish Charity Register.
21 The Trustees will make available to each new Trustee, on or before his first appointment:-
21.1 a copy of this constitution and any amendments made to it; and
21.2 a copy of the SCIO’s latest Trustees’ Annual Report and statement of accounts.
Annual General Meeting
22 The Board must arrange a meeting of the Trustees (an annual general meeting or “AGM”) in each calendar year, reporting on the immediately preceding financial year of the SCIO.
23 The gap between one AGM and the next must not be longer than 15 months.
24 Notwithstanding clause 22, an AGM does not need to be held during the calendar year in which the SCIO is formed; but the first AGM must still be held within 15 months of the date on which the SCIO is incorporated and entered on the Scottish Charity Register.
25 The business of each AGM must include:-
25.1 a report by the Chair on the activities of the SCIO;
25.2 consideration of the annual statement of account of the SCIO, as prepared under Section 44 of the 2005 Act; and
25.3 the election/re-election of Trustees, as referred to in clauses 26 and 27.
Election, retiral, re-election
26 At each AGM, all of the Trustees must retire from office, but may then be re-elected under clause 27.
27 A Trustee retiring at an AGM will be deemed to have been re-elected unless:-
27.1 he advises the Board prior to the conclusion of the AGM that he does not wish to be re-appointed as a Trustee; or
27.2 an election process was held at the AGM and he was not among those elected/reelected through that process; or
27.3 a resolution under sub-clauses 29.5, 29.6 or 29.8 was put to the AGM and was carried.
28 No one is entitled to act as a Trustee whether on appointment or on any re-appointment until he has expressly acknowledged, in whatever way the Trustees decide, his acceptance of the office of Trustee.
Termination of office
29 A Trustee will automatically cease to hold office if:-
29.1 he retires by notifying the SCIO in writing (but only if enough Trustees will remain in office when the notice of resignation takes effect to form a quorum for meetings); or
29.2 he becomes disqualified from being a charity trustee under the 2005 Act; or
29.3 he becomes incapable for medical reasons of carrying out his duties as a Trustee – but only if that has continued (or is expected to continue) for a period of more than six months; or
29.4 he gives the SCIO a notice of resignation; or
29.5 he is absent (without good reason, in the opinion of the Board) from more than three consecutive meetings of the Board – but only if the Board resolves to remove him/her from office; or
29.6 he is removed from office by resolution of the Board on the grounds that he is considered to have been in serious or persistent breach of his duties under section66(1) or (2) of the 2005 Act; or
29.7 he ceases to be a member of the SCIO; or
29.8 he is removed from office for any other reason by resolution of the Board.
30 A resolution under sub-clauses 29.5, 29.6 or 29.8 shall be valid only if:-
30.1 the Trustee who is the subject of the resolution is given 14 days written notice of the grounds upon which the resolution for his removal is to be proposed;
30.2 the Trustee concerned is given the opportunity to address the meeting at which the resolution is proposed, prior to the resolution being put to the vote; and
30.3 at least two thirds (to the nearest round number) of the Trustees vote in favour of the resolution as set out in clause 75.
Register of Charity Trustees
31 The Board must keep a register of Trustees, setting out:-
31.1 for each current Trustee:-
31.1.1 his full name and address; and
31.1.2 the date on which he was appointed as a Trustee; and
31.1.3 any office held by him in the SCIO; and
31.2 for each former Trustee – for at least 6 years from the date on which he ceased to be a Trustee:-
31.2.1 the name of the Trustee; and
31.2.2 any office held by him in the SCIO; and
31.2.3 the date on which he ceased to be a Trustee.
32 The Board must ensure that the register of Trustees is updated within 28 days of any change:-
32.1 which arises from a resolution of the Board; or
32.2 which is notified to the SCIO.
33 If any person requests a copy of the register of Trustees, the Board must ensure that a copy is supplied to him within 28 days, providing the request is reasonable; if the request is made by a person who is not a Trustee of the SCIO, the Board may provide a copy which has the addresses blanked out.
34 The Trustees must elect (from among themselves) a Chair, a Treasurer and a Secretary.
35 In addition to the office-bearers required under clause 34, the Trustees may elect (from among themselves) further office-bearers if they consider that appropriate.
36 All of the office-bearers will cease to hold office at the conclusion of each AGM, but may then be re-elected at the first Board meeting after the AGM, under clause 34 and 35.
37 A person elected to any office will automatically cease to hold that office: –
37.1 if he ceases to be a Trustee; and/or
37.2 if he gives to the SCIO a notice of resignation from that office, signed by him authorised officer.
Powers of Board
38 Except where this constitution states otherwise, the SCIO (and its assets and operations) will be managed by the Board; and the Board may exercise all the powers of the SCIO.
39 A meeting of the Board at which the appropriate quorum (as set out in clauses 58 and 74) is present may exercise all powers exercisable by the Board.
Charity Trustees – general duties & remuneration
40 Each of the Trustees has a duty, in exercising their functions as a Trustee, to act in the interests of the SCIO; and, in particular, must:-
40.1 seek, in good faith, to ensure that the SCIO acts in a manner which is in accordance with its purposes; and
40.2 act with the care and diligence which it is reasonable to expect of a person who is managing the affairs of another person; and
40.3 in circumstances giving rise to the possibility of a conflict of interest between the SCIO and any other party:
40.3.1 put the interests of the SCIO before that of the other party; or
40.3.2 where any other duty prevents him from doing so, disclose the conflicting interest to the SCIO and refrain from participating in any deliberation or decision of the other Trustees with regard to the matter in question;
40.4 ensure that the SCIO complies with any direction, requirement, notice or duty imposed under or by virtue of the 2005 Act.
41 In addition to the duties outlined in clause 40, all of the Trustees must take such steps as are reasonably practicable for the purpose of ensuring:-
41.1 that any breach of any of those duties by a Trustee is corrected by the Trustee concerned and not repeated; and
41.2 that any Trustee who has been in serious and persistent breach of those duties is removed as a Trustee as described in clause 29.6.
42 Provided he has declared his interest – and has not voted on the question of whether or not the SCIO should enter into the arrangement – a Trustee will not be debarred from entering into an arrangement with the SCIO in which he has a private interest; and (subject to the provisions relating to remuneration for services contained in Sections 67, 68 and 68A of the 2005 Act), he may retain any private benefit which arises from that arrangement.
43 For the purposes of the preceding clause, a Trustee shall be deemed to have a personal interest in an arrangement if any partner or other close relative of his or any firm of which he is a partner or any limited company of which he is a substantial shareholder or director (or any other party who is deemed to be connected with him for the purposes of the 2005 Act), has a personal interest in that arrangement.
44 No Trustee may be given remuneration except in accordance with clause 45.
45 Where (i) a Trustee who is engaged in a profession provides services to the SCIO in their professional capacity; or (ii) the Trustee is to become an employee of the SCIO, that Trustee (or, where the Trustee is providing professional services to the SCIO, any organisation of which the Trustee in their professional capacity is an employee or partner), may be remunerated for providing professional services to or becoming an employee of the SCIO provided that:-
45.1 the arrangement is approved by all of the other Trustees; and
45.2 the Trustee concerned shall not participate at any meeting of the Trustees at which the arrangement or remuneration is under discussion;
45.3 at no time shall a majority of Trustees benefit under this clause 45, and any such payment must only be made in the circumstances permitted by section 67 of the 2005 Act.
46 The Trustees may be paid all ‘out of pocket’ travelling and other expenses reasonably incurred by them in connection with carrying out their duties; this may include expenses relating to their attendance at meetings. The Trustees must have a written policy and approved procedure on such matters.
Code of conduct for Charity Trustees
47 Each of the Trustees shall comply with any code of conduct of the SCIO adopted by the Board.
48 The code of conduct referred to in clause 47 shall be supplemental to the provisions relating to the conduct of Trustees contained in this constitution and the duties imposed on Trustees under the 2005 Act. All relevant provisions of this constitution shall be interpreted and applied in accordance with the provisions of any code of conduct which must be annually reviewed by the Board.
DECISION-MAKING BY THE TRUSTEES
Notice of meetings
49 Any Trustee may call a meeting of the Board and/or ask the secretary to call a meeting of the Board. There shall be no fewer than three meetings of the Trustees per calendar year.
50 At least 14 clear days’ notice must be given of the AGM, a members’ meeting, or of a Board meeting at which the business of the meeting includes consideration of any resolution.
51 At least 7 clear days’ notice must be given for other Board meetings unless in the opinion of the Chair there is a degree of urgency which makes that inappropriate.
52 The notice calling an AGM or a Board meeting at which the business of the meeting includes consideration of any resolution, must specify in general terms what business is to be dealt with at the meeting; and in the case of any other resolution falling within clause 75 (requirement for two-thirds majority) must set out the exact terms of the resolution.
53 The reference to “clear days” in clauses 50 and 51 shall be taken to mean that, in calculating the period of notice:-
53.1 the day after the notices are posted or sent by e-mail should be excluded; and
53.2 the day of the meeting itself should also be excluded.
54 Notice of the AGM and Board meetings must be given to all the Trustees; but the accidental omission to give notice to one or more Trustees will not invalidate the proceedings at the meeting.
55 Any notice which requires to be given to a Trustee under this constitution must be:-
55.1 sent by post to the Trustee, at the address last notified by him to the SCIO and on the register of Trustees as described in clause 31; and/or
55.2 sent by e-mail to the Trustee, at the e-mail address last notified by him to the SCIO. It is the responsibility of each Trustee to keep their personal email details up to date.
56 Except where a specified period of notice is strictly required by another clause in this constitution or by the 2005 Act, a general meeting of the members may be called by shorter notice if it is so agreed by a majority of the members of the SCIO.
57 Proof that an envelope containing a notice was properly addressed, prepaid and posted; or that an electronic form of notice was properly addressed and sent, shall be conclusive evidence that the notice was given. Notice shall be deemed to be given 48 hours after it was posted or sent.
Procedure at Board meetings
58 No valid decisions can be taken at a Board meeting unless a quorum is present; the quorum for Board meetings is four Trustees, present in person, except for Board meetings at which a resolution(s) is to be considered, as described in clause 74.
59 If at any time the number of Trustees in office falls below the number stated as the quorum in clause 58, the remaining Trustee(s) will have power to fill the vacancies – but will not be able to take any other valid decisions.
60 The Chair of the SCIO should act as convenor of each Board meeting.
61 If the Chair is not present within 15 minutes after the time at which the meeting was due to start (or is not willing to act as Convenor), the Trustees present at the meeting must elect (from among themselves) the person who will act as chairperson of that meeting.
62 Every Trustee has one vote, which must be given personally or by proxy under clause 71 and 72.
63 All decisions at Board meetings will be made by majority vote. (For procedure on resolutions either at Board meetings or AGMs see clauses 71 – 79.)
64 If there are an equal number of votes for and against any decision, the Chair or the chairperson of the meeting (in the circumstances described in clause 61) will be entitled to a second (casting) vote.
65 The Board may, at its discretion, allow any person to attend and speak at a Board meeting notwithstanding that he is not a Trustee – but on the basis that he must not participate in decision-making. The minute of that meeting must make the status of any such person clear for the avoidance of doubt as to their status.
66 A Trustee must not vote at a Board meeting (or at a meeting of a sub-committee) on any decision which relates to a matter in which he has a private interest or duty which conflicts (or may conflict) with the interests of the SCIO; he must withdraw from the meeting while an item of that nature is being dealt with as described in clause 40 and 67.
67 For the purposes of clause 66:-
67.1 any private interest held by an individual who is “connected” with the Trustee under section 68(2) of the 2005 Act (husband/wife, partner, child, parent, brother/sister and their spouses etc) shall be deemed to be held by that Trustee; and/or
67.2 a Trustee will be automatically deemed to have a private interest in relation to a particular matter, if a body in relation to which he is an employee, director, member of the management committee, charity trustee, officer or elected representative has an interest in that matter.
68 A Board meeting may be held by suitable electronic means or through the medium of a conference telephone or similar form of communication equipment agreed by the Trustees in which each participant may communicate with all the other participants. Where a meeting is convened by conference telephone or other similar form of communication, all persons participating must be able to hear and to speak to each other throughout the meeting.
69 Any Trustee participating at a meeting by suitable electronic means or through the medium of a conference telephone or similar form of communication equipment agreed by the Trustees in which a participant or participants may communicate with all the other participants shall qualify as being present at the meeting and shall accordingly be counted in a quorum and be entitled to vote.
70 Meetings held by electronic means must comply with rules for meetings including chairing and the taking of minutes.
Voting on Resolutions
71 Unless a Trustee is not entitled to vote at a meeting because there is a potential conflict (clauses 40 and 66) or it is a decision regarding the remuneration of that Trustee (clauses 44 and 45), every trustee shall has one vote, which (whether on a show of hands or on a secret ballot as described in clauses 78 and 79) may be given either personally, or by proxy given to a fellow Trustee.
72 A member who wishes to appoint a fellow Trustee as their proxy to vote on his behalf with regard to (and only with regard to) resolutions, must lodge with the Chair (in the circumstances described in clause 61), prior to the time when the meeting commences, a written proxy authorisation form, signed by his authorised representative.
73 All decisions on resolutions will be made by majority vote – with the exception of the types of resolution listed in clause 75.
74 The quorum for meetings (AGMs or Board meetings) at which a resolution(s) is to be considered is four. For these meetings, and these meetings only, this quorum shall include proxies as described in clauses 71 and 72.
75 The following resolutions will be valid only if passed by not less than two thirds of those voting (either on person or by proxy as described in clauses 71 and 72) on the resolution at an AGM or at a Board meeting (or if passed unanimously by way of a written resolution under clause 81) and will also be subject, (with the exception of clauses 75.2 and 75.3) to clause 99:
75.1 a resolution amending the constitution (including changing the name of the SCIO);
75.2 a resolution expelling a person from Trusteeship under clauses 29.5, 29.6 or 29.8;
75.3 a resolution directing the Board to take any particular action (or directing the board not to take any particular action); or
75.4 a resolution approving the amalgamation of the SCIO with another SCIO (or approving the constitution of the new SCIO to be constituted as the successor pursuant to that amalgamation); or
75.5 a resolution to the effect that all of the SCIO’s property, rights and liabilities should be transferred to another SCIO (or agreeing to the transfer from another SCIO of all of its property, rights and liabilities); or
75.6 a resolution for the winding-up of the SCIO.
76 The Trustees may designate any of their meetings as a general meeting of the members of the SCIO. The purpose of such meeting is to discharge any business which must by law be discharged by a resolution of the members of the SCIO as specified in clause 75.
77 If there are an equal number of votes for and against any resolution, the Chair (in the circumstances described in clause 61), will be entitled to a second (casting) vote.
78 A resolution put to the vote at an AGM or Board meeting will be decided on a show of hands – unless the Chair (or at least two other Trustees present at the meeting, whether voting personally or as proxies), ask for a secret ballot.
79 The Chair will decide how any secret ballot is to be conducted, and he will declare the result of the ballot at the meeting.
80 The provisions in this constitution governing the chairing of meetings, procedure at the meetings and participation in meetings by electronic means apply to any general meeting of the members, with all references to Trustees to be taken as references to members.
Written resolutions by Trustees
81 A resolution agreed to in writing including by e-mail by all the Trustees will be as valid as if it had been passed at an AGM or Board meeting as appropriate; the date of the resolution will be taken to be the date on which the last person agreed to it and it must be unanimous.
82 The Board must ensure that proper minutes are kept in relation to all Board meetings and meetings of sub-committees.
83 The minutes to be kept under clause 82 must include the names of those present; and (so far as possible) should be signed by the Chair.
84 With due reference to all applicable statutory requirements, it is wholly at the discretion of the Board as to whether or not the minute of a meeting, or any excerpt from the minute of a meeting, is to be made available to members of the public or any body.
Delegation to sub-committees
85 The Board may delegate any of their functions or powers to sub-committees; a sub-committee must include at least one Trustee, but other members of a sub-committee need not be Trustees.
86 The Board may also delegate to the Chair (or the holder of any other post) such of their powers (but not their responsibilities) as they may consider appropriate.
87 When delegating powers under clause 85 or 86, the Board must set out appropriate conditions (which must include an obligation to report regularly to the Board).
88 Any delegation of powers under clause 85 or 86 may be revoked or altered by the Board at any time.
89 The rules of procedure for each sub-committee, and the provisions relating to membership of each sub-committee, shall be set by the Board.
Operation of accounts
90 The banking account or accounts of the SCIO shall be kept in such bank or building society and/or banks or building societies as the Board shall from time to time determine.
91 All cheques and other negotiable instruments, all electronic banking or financial transactions, and all receipts for monies paid to the SCIO, shall be signed, drawn, accepted, endorsed or otherwise executed, as the case may be in such manner as the Board shall from time to time by resolution determine. Cheques shall be signed by any two of three designated signatories.
Accounting records and annual accounts
92 The first financial year of the SCIO following incorporation shall run from the date of incorporation to 5 April 2014.
93 Each subsequent financial year of the SCIO shall run from 6 April to 5 April in the following year.
94 The Trustees must comply with the requirements of the 2005 Act and the Accounts Regulations with regard to keeping of accounting records, to the preparation and external scrutiny of statements of accounts by either a registered auditor or an appropriately qualified independent examiner, and to the preparation of annual reports and returns.
95 The Board must ensure that proper accounting records are kept, in accordance with all applicable statutory requirements.
96 Without prejudice to any other indemnity, the Trustees, or the member of any sub-committee, and all employees of the SCIO shall be indemnified out of the funds of the SCIO against any loss or liability (including the costs of defending successfully any court proceedings) which he may incur or sustain in connection with or on behalf of the SCIO including, without prejudice to that generality, any liability incurred by him in defending any proceedings, whether civil or criminal, in which judgment is given in his favour or in which he is acquitted or in connection with any application in which relief is granted to him/her by the court from liability for negligence, default, breach of duty or breach of trust in relation to the affairs of the SCIO.
Dissolution and wind-up of the SCIO
97 If the SCIO is to be dissolved and wound-up, the dissolution and wind-up process will be carried out in accordance with the procedures set out under the 2005 Act and the Scottish Charitable Incorporated Organisation (Removal from Register and Dissolution) Regulations 2011.
98 Any surplus assets available to the SCIO immediately preceding its winding-up must be used for purposes which are the same as – or which closely resemble – the purposes of the SCIO as set out in this constitution.
Alterations to the constitution
99 This SCIO may (subject to clause 98) be altered by resolution of the Charity Trustees passed at an AGM or Board meeting (subject to achieving the two thirds majority referred to in clause 75) or by way of a unanimous written resolution of the members (as described in clause 81).
100 The 2005 Act requires that consent is sought from the Office of the Scottish Charity Regulator to action the following changes: change of name, an alteration to the purposes, amalgamation and/or winding-up.