What is different for charities operating in England, Wales, Scotland or Northern Ireland?
Over the years several charities from England, Wales, Scotland and Northern Ireland have asked us what they need to do differently if they want to work in more than one of the nations of the UK.
The short answer is always “it depends”.
It depends on which country the charity is established in, where it wants to operate in the UK beyond its ‘home’ country, what services it provides and how it delivers them.
Registering in England & Wales
A charity registered with the Office of the Scottish Charity Regulator (OSCR) or the Charity Commission for Northern Ireland (CCNI), cannot register with the Charity Commission for England and Wales (CCEW) even if it operates in England and/or Wales. Such a charity is free to operate in England and/or Wales, providing its governing document permits it (e.g. there is no area of benefit defined in the objects of the charity or the area of benefit includes the relevant country).
Registering in Scotland
Generally if a charity wants to call itself a charity in Scotland it has be registered with OSRC, even if it is registered in England & Wales or Northern Ireland. This does not involve setting up a separate charity in Scotland but if an organisation is not on the Scottish Charity Register it is not a charity in Scotland. There are no exempt or excepted charities in Scotland as there are in England and Wales, although the Charities and Trustee Investment (Scotland) Act 2005 does provide some exceptions from registration where a cross-border charity represents itself as a charity but does not have substantive activity in Scotland (e.g. if it only has 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? (f no you cannot 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. Note that there are some subtle definitions involved in assessing against this test.
To register with OSCR a charity must have objects that are charitable under Scottish Law. As charity law in Scotland is subtly different from charity law in England & Wales and/or Northern Ireland, a charity that is registered with CCEW or CCNI seeking registration with OSCR should get advice on whether its objects would qualify as charitable in Scotland.
Registering in Northern Ireland
The Charities Act (Northern Ireland) 2008 established the CCNI, which registers charities in Northern Ireland. Currently provisions requiring charities registered with the CCEW or OSCR) to register with the CCNI have not been enacted. Therefore, a charity that wants to call itself a charity in Northern Ireland cannot register with the CCNI if it registered in another jurisdiction (England & Wales or Scotland). Such a charity is free to operate in England and Wales without further registration, providing its governing document permits it.
Other things to think about
Beside registration (or not) with the relevant charity regulator, charities should also consider other potential regulatory differences between the four UK nations. Which are most relevant will depend on what the charity does but the most common regulatory differences that arise are:
Accounting and compliance: there are different filing requirements and varying annual income and asset thresholds for independent examination, statutory audit and consolidated group accounts required by each of the charity regulators.
Safeguarding: there are material and significant differences in legislation between the UK nations, which will likely require different policies and practices in each jurisdiction.
Fundraising: The Fundraising Regulator’s Code of Fundraising practice applies to England, Wales and Northern Ireland but in Scotland the regulator is the Scottish Fundraising Adjudication Panel. However, a charity established in England, Wales or Northern Ireland operating in Scotland continues to be regulated by the Fundraising Regulator but the regime is more complicated for appeals, direct marketing and collections in Scotland and advice should be sought on compliance before starting those activities in Scotland.
Language: There aren’t direct legal requirements for use of the Welsh Language for charities operating in Wales (although if they receive significant public funding in Wales there usually will be) but 75% of Welsh speakers believe charities should operate bilingually, and the Welsh Language Commissioner actively encourages charities to adopt bilingual practice. Similarly, only public bodies in Scotland have any obligations in respect of use of Gaelic or Scots languages but there may be additional requirements attached to public funding as well as higher community expectations in some areas of Scotland. There are no comparable statutory language obligations in Northern Ireland but Ulster Scots and Irish language communities are politically significant, meaning that community expectations for bilingual communications may be higher in some areas.
Employment: There are some differences in employment (and sometimes tax) law between the nations. Charities should get advice if they intend to employ any staff in different jurisdictions.
Sustainability: The Wellbeing of Future Generations (Wales) Act 2015 places duties on public bodies to consider long-term sustainability in decision-making. While this does not bind charities directly, it influences commissioning priorities and grant-making criteria of Welsh public bodies.
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Want to find out more? Contact us at julian@almondtreeconsulting.co.uk to discuss your organisation’s needs.
