At Work: Law and Governance - Keep it legal - Operating in Scotland

Chris Priestley is a partner at charity law specialists Withers LLP

In Scotland the activities of charities, including charities registered outside Scotland, are regulated by the Office of the Scottish Charity Regulator, established by the Charities and Trustee Investment (Scotland) Act 2005.

As a general rule, a charitable organisation in Scotland may refer to itself as a charity only if it is listed on the Scottish Charity Register, which is regulated and maintained by the OSCR. This applies regardless of whether the organisation is entitled to call itself a charity in another country.

There is, however, an exemption for any organisation that is established under the law of a country other than Scotland and is therefore entitled to call itself a charity in that country - for example, a charity that is registered in England and Wales.

This exemption applies only if the organisation is managed or controlled wholly or mainly outside Scotland. It is also necessary that the organisation does not occupy land or premises in Scotland and that it carries out no office-based activities or activities in a shop or similar premises in Scotland.

Organisations that meet these criteria are able to refer to themselves as charities in Scotland. In doing so, they must also refer to the fact they were established under the law of a country other than Scotland.

For example, they will need to state that "XYZ is a charity registered in England and Wales". English and Welsh charities that are not thus exempted are obliged to register with the OSCR by February 2007.

There are a number of factors charities should consider before applying for registration in Scotland. An organisation will be registered by the OSCR only if it meets the charity test introduced under the 2005 Act.

To meet the test, an organisation must be shown to further one or more of the 16 charitable purposes specified in the Act. It must also be able to prove that it provides a public benefit in Scotland or elsewhere. In determining whether a charity provides a public benefit, the OSCR will consider whether any condition on an individual obtaining that benefit - any charge or fee, for example - is unduly restrictive. The OSCR application form, available on its website (www.oscr.org.uk), reflects these requirements.

Once a charity has been included on the Scottish Charity Register, it must comply with the OSCR's reporting requirements.

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