Over the last few years we have worked with a growing number of charities registered in Scotland with the Office of the Scottish Charity Regulator (OSCR). Most have been charities registered in England and Wales that are also registered with OSCR. So when does an English/Welsh charity need to register with OSCR?
Generally if a charity wants to call itself a charity in Scotland it has be registered with OSRC, whether or not it is registered in another jurisdiction. You do not need a separate charity in Scotland but remember if it is not on the Scottish Charity Register your organisation is not a charity in Scotland. There are no exempt or excepted charities as there are in England and Wales although the Charities and Trustee Investment (Scotland) Act 2005 does provide some exceptions where a cross-border charity represents itself as a charity but does not have substantive activity in Scotland (as opposed to only an occasional connection).
The OSCR website provides a flow chart and asks some simple questions to help charities decide if they need to apply to OSCR for registration. In summary these are:
Do you want to represent your organisation as a charity in Scotland? (if no you don’t need to register with OSCR.)
Are you registered in England and Wales? (if no you must register with OSCR if you want to represent your organisation as a charity in Scotland.)
Are you established under Scots law? (If yes you must register with OSCR if you want to represent your organisation as a charity in Scotland.)
Are you managed or controlled wholly or mainly in Scotland? (If yes you must register with OSCR if you want to represent your organisation as a charity in Scotland.)
Do you occupy land or premises in Scotland? (If yes you must register with OSCR if you want to represent your organisation as a charity in Scotland.)
Do you carry out activities in any premises in Scotland? (If yes you must register with OSCR if you want to represent your organisation as a charity in Scotland.)
Equally, Scottish charities operating in England and Wales must register with the Charity Commission for England and Wales but a Scottish Charitable Incorporated Organisation (SCIO) cannot register in England and Wales - this is a purely Scottish form of Charity.
The Charities Act (Northern Ireland) 2008 also established the Charity Commission for Northern Ireland (CCNI), which registers charities in Northern Ireland. Only organisations that have been called forward by the CCNI can currently apply to register as a charity with CCNI.
Future arrangements for organisations governed by the law of another jurisdiction but that operate in Northern Ireland remain unclear. Organisations that were established outside Northern Ireland but which operate for charitable purposes in or from Northern Ireland will eventually be required to apply for registration with the CCNI, albeit likely with different annual reporting obligations. However, this legislation has not yet been fully enacted and therefore, such charities have not yet been called to register in Northern Ireland. CCNI recommends that if your organisation falls into this category you should make them aware of your intention to register.
We hope this short article has been helpful and would be pleased to work with any charity on cross-border registration if you need help. To find out more about this or any of the issues raised in this article, please contact us at firstname.lastname@example.org to arrange free initial telephone discussion.