The Office of the Scottish Charity Regulator's draft guidance for charities on the independence referendum is unhelpful and goes beyond its statutory remit, the Scottish Council for Voluntary Organisations has said.
In April, the OSCR asked charities for their views on its draft guidance on charity involvement in the referendum about Scottish independence, which will be held in September 2014.
In its response to the consultation, which closed earlier this month, the SCVO says the OSCR’s guidance could "cause confusion among charities, dissuade them from participating in an important debate and contribute to a more risk-averse culture in the charitable sector".
The SCVO says the guidance goes beyond the OSCR’s regulatory remit and "moves into the territory of advising charities about the type of activity they should undertake".
It says the guidance puts too much emphasis on the reputational risk that taking part in a referendum might have on charities. It says it is inevitable that campaigning carries a reputational risk for charities, but says this is normal and trustees regularly make judgements about similar issues.
The SCVO says it is particularly concerned by a section claiming that campaigning activity could alienate supporters and funders. "This is promotion of a risk-averse culture in charities and inappropriate territory for the OSCR," it says. "It is our view that all references to risk and reputation should be removed from the guidance."
The SCVO also criticises the guidance for lacking clarity, especially about what it considers to be a key question for charities – whether they would be able to campaign for a particular vote in the referendum.
It says the guidance appears to dissuade charities from participating in the referendum, without providing sound reasoning or legal justification for doing so.
"If there is no legal impediment to charities campaigning for a yes or no vote, then that should be stated clearly in the guidance," the response says.
David Robb, chief executive of the OSCR, said: "As a responsive, responsible regulator, we are developing guidance to promote clarity so that charity trustees can participate in that debate within the requirements of charity law.
"We welcome the SCVO’s contribution and, along with other submissions, this response will be considered carefully as we finalise our guidance over the next few weeks."