Charities and Trustee Investment (Scotland) Act 2005

In the ten years since the author’s’ first edition of their annotated version of The Charities and Trustee Investment (Scotland) Act 2005, there has been extensive change in the area of charity law in Scotland. The Act has been amended significantly and the Scottish Charity Regulator (OSCR) has filled out the bare bones of the legislation with a formidable corpus of decisions and guidance. All which demands that a refreshed commentary of the Act is required to guide the practitioner through the practical implications of the primary provisions.

The 2005 Act as enacted set out a broad framework for charity regulation in Scotland, leaving much of the detail to be supplemented by regulations issued by the Scottish Ministers and by exercise of the wide discretionary powers of OSCR. With the benefit of almost full implementation of the Act and a near-complete set of supporting regulations, it is now possible to offer a definitive commentary with authoritative interpretation, and in addition a critique pointing to future reform in this area of law. During the ten years since the Act came into force, much has developed in the non-profit landscape across the UK, and expert observations are offered by the authors here on the continuing capacity of the Act to meet the needs of the rapidly evolving charities sector in Scotland.

Authors Stuart Cross and Patrick Ford offer:

• A scene-setting contextual introduction, outlining significant developments impacting on charities regulation in Scotland since full establishment of OSCR in 2006
•  Extended coverage of the functions and powers of OSCR in light of its ten years of regulatory practice
• Fully revised coverage of the Scottish charity test, including a key-point comparison with the Charities Act 2011 definition of “charity” (relevant for UK tax-relief purposes)
• Fully revised coverage of charity trustee duties, taking account of OSCR’s supervisory practice and recently reissued guidance
• Revised coverage of Scottish fundraising controls in light of recent developments in both Scotland and England and Wales

Legislation covered within the text includes:

• Charities and Trustee Investment (Scotland) Act 2005, as amended by Public Services Reform (Scotland) Act 2010
• Regulations made by Scottish Ministers under 2005 Act, as amended where relevant:
• Charities References in Documents (Scotland) Regulations 2007/203 (Scottish SI)
• Charities Reorganisation (Scotland) Regulations 2007/204 (Scottish SI)
• Charities Restricted Funds Reorganisation (Scotland) Regulations 2012/219 (Scottish SI)
• Charities Accounts (Scotland) Regulations 2006/218 (Scottish SI)
• Scottish Charitable Incorporated Organisations Regulations 2011/44 (Scottish SI)
• Scottish Charitable Incorporated Organisations (Removal from Register and Dissolution) Regulations 2011/237 (Scottish SI)
• Scottish Charity Appeals Panel Rules 2006/571 (Scottish SI)
• Charities and Benevolent Fundraising (Scotland) Regulations 2009/121 (Scottish SI)
• Charities Act 2011 (consolidating Charities Acts 1993 and 2006)

This is an essential resource for charity law specialists in Scotland and all others advising charity clients. It will also be invaluable for practitioners in the wider UK advising charities and equivalent organisations seeking to register as charities in Scotland. The text offers guidance to all interested in the review and reform of the 2005 Act, including academics and charities themselves.

Coverage includes:
• Detailed commentary on interpretation and practical implications of primary provisions
• Pointers to relevant OSCR guidance
• Comparison where relevant with equivalent provisions of Charities Act 2011, significant for Scottish charities seeking UK tax relief and for charities established in England and Wales seeking registration with OSCR

Stuart Cross is a Professor of Law and Head of Discipline at the University of Dundee and a board member of the Office of the Scottish Charity Regulator. He has twelve years' experience as a practising solicitor specialising in corporate law.

Patrick Ford is a former Lecturer in Law and now Honorary Research Fellow at the Dundee Law School, University of Dundee, and member of the School’s Charity Law Research Unit. He is a solicitor, Writer to the Signet and member of the Society of Trust and Estate Practitioners and was in private practice for fifteen years before joining the Law School, specialising latterly in trust law and tax planning.