Some charities based in England and Wales work in Scotland or are thinking of doing so in the future. Scots law (The Charities and Trustee Investment (Scotland) Act 2005) applies to the work that these charities - 'cross border charities' - carry out in Scotland. This page sets out how the law affects their charitable status, and also signposts to sources of further information.
Will we need to register as a charity in Scotland?
Generally, any charity of any size based in England and Wales which currently describes itself (or intends to do so) as a charity in Scotland will need to register with the Office of the Scottish Charity Regulator (OSCR). This is the case whether or not the charity is already registered with us.
The only exception is where the cross border charity does not carry out any substantive activity in Scotland - further details on registration and what a substantive activity means in practice are on the OSCR website under 'English and Welsh charities'.
If the exceptions from registration don't apply to your charity, you will need to apply for registration with OSCR (contact details are given below). An application form and trustee declaration form for English and Welsh charities is available on OSCR's website. The website also explains what other legal duties will apply to cross border charities.
Will we need to change our governing document to register with OSCR?
The governing documents of charities established under the law of England and Wales are interpreted according to that law. However, the terms 'charitable' or 'charitable purposes' in these governing documents do not have exactly the same meanings as they do in Scots law. This means that you will have to change any references to these terms in objects or dissolution clauses to make sure that they meet the requirements of Scots law as well.
If you make an application for registration to OSCR, they will let you know what (if any) changes need to be made - or you might want to take professional advice before making an application.
What needs to be done to make these changes?
Most England and Welsh charities will need our consent to make the necessary changes to their governing documents so that they can register as charities with OSCR. There is a standard form of wording for both objects and dissolution clauses that we have agreed with OSCR.
Charities should apply for our consent and then make any changes in line with the procedures laid out in their governing documents (see our publication Changing your Charities Governing Document CC36). Once the amendments have been made, registration with OSCR can be completed, unless there are other issues affecting the application - which OSCR will advise on.
Will these amendments have any effect on our charity's activities?
It is possible that the amendments described above might restrict the charity's purposes in some way. At the moment the two sets of legislation (that of England & Wales and that of Scotland) only differ slightly, but it is possible that the definition of what is charitable or what public benefit means might differ more widely in the future.
This means that charities amending their governing documents in this way should be satisfied that the change will not, or is unlikely to, restrict their activities in England and Wales or elsewhere. This might mean checking with OSCR or taking advice from a solicitor familiar with Scots law and the law of England and Wales.
Can we transfer our registration with the Charity Commission to OSCR?
If your charity's governing document either states or makes it clear in some other way that it is to be administered under the law of England and Wales, then it is regulated by us. This cannot be changed and there is no mechanism to simply transfer Charity Commission jurisdiction to another regulator.
If a charity only wants to be registered with OSCR then it needs to formally dissolve and to transfer its assets to a new charity established under Scottish law and registered with OSCR. We would then remove the England and Wales charity from our register when we receive its final accounts.
Can Scottish charities register with the Charity Commission as well?
No. A Scottish charity is one that is set up under Scots law and registered with OSCR. This means that we cannot register Scottish charities - we can only register charities that are established under the law of England and Wales and so are subject to our jurisdiction.
Contact details for OSCR
The Office of the Scottish Charity Regulator
2nd Floor
Quadrant House
9 Riverside Drive
Dundee
DD1 4NY
Tel: 01382 220446
Email: info@oscr.org.uk
Website: www.oscr.org.uk