UK: Scottish Charity Regulator Issues Consultation On Existing Charity Law And Regulation

Last Updated: 18 January 2019
Article by Victoria Simpson

The long awaited consultation on Scottish Charity Law was published on 7 January 2019. This sets out the proposals of the Office of the Scottish Charity Regulator (OSCR) to improve the regulatory framework for charities in Scotland.  The proposals are intended to increase transparency and accountability in order to maintain public trust and confidence in charities and in OSCR.  This follows 'the evolving challenges' faced by the charity sector, in which issues such as safeguarding concerns, governance problems and reputational matters have dominated the headlines.

The proposals set out in the consultation

The terms of the Charities and Trustee Investment (Scotland) Act 2005 (the '2005 Act') allow OSCR to make proposals to the Scottish Ministers on matters relating to its functions. The consultation document also states that "the Scottish Ministers remain open as to what, if any, changes are required to the statutory framework (e.g. the 2005 Act), and will be guided by the consultation responses".  Whether this will provide an opportunity to make other comments on the 2005 Act remains to be seen. 

OSCR's proposals as set out in the consultation document are as follows:-

1. That annual accounts and reports for all charities are published in full on the Scottish Charity Register

  • OSCR currently publish the annual accounts and reports for all charities with an income over £25,000 and for all Scottish Charitable Incorporated Organisations (SCIO's) on the Scottish Charity Register.  This is only around half of the charities on the Register.  The accounts are also redacted, so all personal information such as names of trustees are removed before they can be published.
  • OSCR want to publish accounts for all charities in full, with only signatures being removed.

Our comment

This has been a controversial proposal. Given that the Charity Commission already do this, and that any interested person can request a copy of the latest accounts from any charity, we support this proposal. It will promote full transparency and allow clear benchmarking between charities. 

2. To set up an Internal Charity Trustee Database and an External Trustee Register for use by the general public

OSCR propose establishing two new registers: 

  • An internal database of charity trustees which will include full personal details and date of birth.  It could also include the details of disqualified trustees or trustees who have been removed following an OSCR inquiry.
  • An external public register would include trustee's names (including disqualified or removed trustees) and a principal office or contact address. 

Our comment

OSCR's view is that this information will assist in their compliance, investigation and engagement work. Whilst this may be the case, more clarity is needed on who the internal database will be shared with and in what circumstances. Further reassurance will also be needed on the matter of data security.  We do not consider that providing this information to OSCR and keeping OSCR updated on trustee changes to be onerous for charities.

3. To extend the disqualification criteria for charity trustees

OSCR propose that the disqualification criteria for charity trustees should apply to both charity trustees and also to staff in a senior management position within the charity.

It is also proposed that following recent legislative changes in England and Wales regarding disqualification criteria, that the disqualification criteria set out in the 2005 Act should now also include the following:-

  • Unspent convictions for perjury, perverting the course of justice, misconduct in public office, contempt of court and specified bribery, terrorism and money laundering offences.
  • Individuals subject to terrorist asset freezing orders.
  • Disobedience of specified Charity Commission orders.
  • Individuals subject to notification requirements of part 2 Sexual Offences Act 2003 (or who are on the sex offenders register).
  • Individuals could still apply to OSCR for a waiver from disqualification in terms of the disqualifications currently set out under the 2005 Act.

Our comment

We can see the merit in seeking to extend the disqualification criteria to charity trustees and those in senior management. It also seems sensible for the disqualification criteria to be uniformly applied both north and south of the border.

4. Include power for OSCR to issue positive direction notices to charities

OSCR can currently issue preventative type direction notices, requiring a charity not to take a particular action.  Directions are issued to protect a charity's assets or to correct or prevent misconduct by trustees following an OSCR inquiry. 

It is noted that the Charity Commissions for both England and Wales and for Northern Ireland have wide ranging powers to issue positive directions.  Granting this power would therefore strengthen OSCR's enquiry and enforcement powers. The examples provided include issuing directions to appoint additional trustees (e.g. to form a quorum), to manage a conflict of interest and to take action in accordance with a constitution (e.g. to hold an AGM). 

Failure to comply with a positive direction would be regarded as misconduct in the administration of the charity, resulting in appropriate enforcement action.  OSCR could also publish an inquiry report where a positive direction has been issued.

Our comment

The consultation document notes that to date, the other regulators have used this power sparingly.  The scope of this proposal needs careful consideration, particularly with regard to the extent of the power and discretion it could confer upon OSCR.

5. Power to remove charities from the Scottish Charity Register that persistently fail to submit annual reports and accounts and who may no longer exist

The proposal is to give OSCR a discretionary power to remove any charities that have persistently failed to submit accounts to the Scottish Charity Register. 

  • Where charities currently fail to do so, or have ceased to exist and haven't told OSCR, it is difficult for OSCR to take action if they do not have current contact details.  For example, OSCR cannot use their inquiry powers or their power to appoint someone to prepare accounts for a charity if they cannot make contact.
  • OSCR could also be given a power of positive direction to enable them to direct a charity to prepare accounts.  Failure to comply would be regarded as misconduct.

Our comment

This proposal seems sensible and the only option open to OSCR if there is no means of contacting a charity.  Once again however, careful consideration would need to be given to the way in which OSCR can exercise its discretion within this power.

6. That all charities on the Scottish Charity Register should have and retain a connection in Scotland

Under this proposal, cross border charities that are registered with the Charity Commission for England and Wales can continue to register with OSCR as before. 

  • The proposal suggests that charities which are established outside of Scotland, that are managed or controlled wholly or mainly outside Scotland, that don't occupy any land or premises in Scotland and which don't carry out any activities or have any shops in Scotland, should no longer be entered onto the Scottish Charity Register.

Our comment

We are aware of the potential regulatory difficulties that can be caused by such bodies and can see the merit in exploring this proposal further.

7. That OSCR can make inquiries into former charities and their former trustees

  • OSCR does not currently have the power to make inquiries into a body which is no longer a charity, or which has ceased to exist as a charity, or which is no longer controlled by a charity.  This means that OSCR cannot make an inquiry into the body if it later appears that there was misconduct while that body was a charity.  This is what is now proposed.
  • The current framework means that OSCR cannot collect the evidence it needs to make an application to the Court of Session to disqualify the individuals who were former charity trustees from being a charity trustee again.  This means that such individuals can become charity trustees of other charities. 

Our comment

We believe that this will be a helpful power for OSCR to have, where there appear to be sufficient grounds for an inquiry to be carried out. 

8. New proposals for dealing with the assets of former registered charities

  • Any charity can request that OSCR can remove it from the Scottish Charity Register.  If so, all assets that it holds at the removal date will continue to be subject to OSCR monitoring.  The body must continue to submit annual accounts to OSCR for these assets only, and use the assets for its former charitable purposes until spent. 
  • There is no requirement however for these assets to be used in a way that provides public benefit.  This could potentially allow assets to be used for private gain. 

Our comment

It has long been recognised that bodies that choose to come off the Charity Register in this way are restricted. Continuing to report to OSCR can be burdensome.  We agree, however, that assets that were charitable assets must remain broadly accountable and therefore support this proposal. 

9. Increasing OSCR's inquiry powers

  • Currently, OSCR can only require third parties to provide information under its inquiry powers in connection with an existing charity.  Notice of the information request must also be given to the charity at the same time.  The 2005 Act does not take account of bodies or individuals that have been misrepresenting themselves as being a charity, bodies which are no longer charities in respect of their pre-removal charitable assets, and the former trustees of charities which no longer exist.
  • OSCR propose that they should be able to request information from third parties in this situation, and be able to serve notice on the bodies/former trustees identified above.
  • OSCR also seek clarity on the notice periods for serving and responding to such notices under the 2005 Act.

Our comment

We welcome this proposal. 

10.  To extend the reorganisation provisions to bodies established under Royal Charter, Warrant or Enactment

The proposal seeks to clarify that the reorganisation provisions set out in the 2005 Act do apply to bodies set up under royal charter, warrant or enactment. 

Our comment

We fully support this proposal. This should save the charities concerned considerable expense and time where they are currently required to amend their constitution via the Privy Council or by a private bill. 


The consultation document may have come as a disappointment to those in the sector who have long been pressing for the 2005 Act to be properly reviewed and updated.  The proposals primarily focus on the needs identified by OSCR and if approved, will result in considerably enhanced regulatory powers. As stated above, it would appear that there may still be scope for interested parties to comment on their other concerns about the 2005 Act.  Whether or not any such issues can be properly considered within the scope of this consultation remains to be seen. In the meantime, the proposals set out above will go a long way towards increasing transparency and accountability within the charity sector and we welcome them and the discussion that will follow. We will provide a further update once the consultation results are published.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions