Charities 'do not have to register'

Charities based in England and Wales could exploit a loophole in the law to work in Scotland without having to change their constitutions and register with the Scottish regulator, a lawyer has said.

Under the Charities and Trustee Investment (Scotland) Act 2005, English and Welsh charities that occupy land or premises in Scotland must register with the Office of the Scottish Charity Regulator in order to operate as charities in Scotland.

However, Philip Kirkpatrick, partner and charity and social enterprise specialist at law firm Bates, Wells & Braithwaite, has suggested that such organisations could continue to operate in Scotland without registering with the OSCR, provided they don't call themselves charities.

"They might go as far as to describe themselves as charitable companies registered with the Charity Commission," said Kirkpatrick.

A spokesman for the OSCR said: "It is possible for bodies that are not charities in Scotland to raise funds there, but this is not the point at issue." The OSCR's position was that the charities affected should register, he said.

The OSCR has said that most English and Welsh charities wishing to register in Scotland will need to make only minor alterations to their constitutions. It has produced a form of wording that English and Welsh charities can use.

But Kirkpatrick argued that the differing definitions in English and Scottish law could mean more substantial changes were required. "I expect that English and Welsh charities operating in Scotland have to limit their objects to fit in with Scottish objects," he said.

Charities that do not occupy land or premises in Scotland and are wholly or mainly managed or controlled outside the country may continue to call themselves charities.

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