Scots voluntary associations need 'legal personality', says QC

Law currently in 'unsatisfactory state', says expert charged with leading the review

Unincorporated associations in Scotland should be given their own legal 'personality' to allow them to contract, employ staff and hold property in their own names, according to the Scottish Law Commission.

The commission, which advises the Scottish Government on law changes, made the proposal in a discussion paper put out for consultation last month. It says associations make up more than half of Scottish charities, but that their lack of a legal personality in both English and Scottish law means their trustees and members are often personally liable for commitments their associations make.

Colin Tyre QC, who is leading the commission's work on unincorporated associations, said: "The law relating to unincorporated associations and clubs is widely regarded as being in an unsatisfactory state. Many people who join clubs or devote time to the management of voluntary associations are unaware of the personal liabilities they may incur simply by becoming a member or a committee member."

The consultation document also says there is no need for a new corporate structure for non-profit associations, either for all associations or restricted to non-charitable clubs that would not qualify to become Scottish charitable incorporated organisations.

Alan Eccles, a solicitor at Scottish law firm Maclay Murray & Spens, endorsed the commission's views. He said it would also be helpful to have an easier method of incorporation for associations with large numbers of members, such as student unions. Under current arrangements, all members must agree to incorporate.

But Eccles added that creating a legal personality for associations would not completely protect trustees and members from liability. "If you are worried about liability, you should still incorporate," he said.

The consultation runs until 6 March. According to Eccles, draft legislation is unlikely to be ready before late next year. He also doubted it would get priority in the Westminster parliament, where it would have to be passed. "It could be five years before the changes are actually in place," he said.

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