The draft public benefit guidance produced by the Charity Commission for Northern Ireland contains a number of mistakes because it is based too closely on Scottish guidance, according to a Charity Law Association working party.
In its response to CCNI's consultation on the guidance, which closed last month, the CLA working party says the document is generally "clear, helpful and user-friendly". But it notes that even the document's title, Meeting the Charity Test - demonstrating public benefit, is misleading because there is no reference to a 'charity test' in the Charities Act (Northern Ireland) 2008.
The response says the discrepancy arose because CCNI's guidance is based "to a large extent" on the Office of the Scottish Charity Regulator's 2008 guidance on meeting the Scottish charity test.
It commends this approach as "pragmatic and sensible", but notes that CCNI's adoption of a Scottish interpretation of the meaning of charity needs to be explained clearly because the definition in Scottish law is quite different from that in the Northern Irish act.
The NI act's wording, combining elements of English and Scottish law, "presents a significant and unenviable challenge to the CCNI as regulator", it says. But it adds that it is far from clear how two such different approaches could both give rise to exactly the same public benefit test.
Some of the legal interpretations and examples derived from the OSCR guidance are also inconsistent with Northern Irish law, says the working party.
A CCNI spokesman welcomed the CLA's response, one of nearly 300. "CCNI will look at all responses with a view to finalising its guidance early in the new year," he said.