The implementation of Northern Ireland's Charities Act will be delayed, and the legislation might be rewritten, after lawyers warned it was open to legal challenge because it combines Scottish law with legislation that applies to England and Wales.
The 2008 Charities Act (Northern Ireland) says a charitable purpose is "a purpose which is for the public benefit", the same definition used in the 2006 Charities Act that applies to England and Wales.
But the Northern Irish act also includes text from the Charities and Trustee Investment (Scotland) Act 2005, which says an organisation wanting to register as a charity will be assessed on whether it "provides or intends to provide public benefit".
The discrepancy would allow lawyers to claim it was unclear whether, when registering charities, the Northern Ireland Charity Commission would assess their stated aims, as is the case in England and Wales, or their activities, as happens in Scotland.
The problem was identified by respondents to a public consultation on the commission's draft public benefit guidance, which was published last year.
Roy McGivern, head of charity policy at Northern Ireland's Department for Social Development, told Third Sector the department was considering rewriting the relevant part of the act and putting it before the Northern Ireland Assembly as a piece of primary legislation, but had not ruled out letting the act stand and leaving it open to legal challenge.
He said rewriting the law would mean the commission could not start registering charities until the new legislation had been passed.
"Some people have described our legislation as a hybrid between the system in England and Wales and that in Scotland," he said.
"When we were drafting the legislation we wanted a robust public benefit test, and decided the Scottish test was more robust. For that reason, we included the Scottish provision about making sure charities provided or intended to provide public benefit, rather than just making sure their purposes were charitable."
McGivern said it was unclear whether the Scottish provision, or the English and Welsh one, would be amended if the legislation was rewritten. He said Alex Attwood, Northern Ireland's minister for social development, would raise the issue in the assembly at the beginning of September, when it returned from its recess.