Expertise for Charities in different Jurisdictions
The Kubernesis Partnership LLP has for many years worked with charities across the four countries of the UK. The UK has three separate legal systems with significant differences for charities – these are known as the three UK jurisdictions: England & Wales, Scotland, and Northern Ireland.
One of our specialisations is advising on the key distinctions in charity regulation between the three jurisdictions – see below for examples of the issues to consider.
From our current base in Dunbar, East Lothian we are in south-east Scotland, not far from the England/Scotland border. So we are well placed for work with charities and their advisers in Scotland, NE England and Yorkshire. Belfast and Dublin are also easily reached from Edinburgh airport. We have many years experience of working with charities both in England and Scotland.
We have the experience to support those seeking to establish new charities in any of the UK jurisdictions. This includes constitutional and regulatory issues and support on charity accounting/independent examinations including issues for cross-border charities. We can also offer specialist help to other professional advisers.
We also have some experience of charity regulation and accounting in the Republic of Ireland. Ireland has developed a modern system of charity law under the Charities Act 2009 and an effect Charities Regulator. For English speaking organisations wishing to establish a charity with in the EU, Ireland is now the obvious location, with a system of charity law that has many similarities to the UK jurisdictions.
Why Scottish charities are different from those in England & Wales: The whole framework of charity regulation has many difference in Scotland as compared to England, and it is vital that Scottish charities seek professional advice from those who specialise in the Scottish system of charity law and accounting. These are some of the key distinctions:
- The primary legislation is the Charities and Trustee Investment (Scotland) Act 2005 (as opposed to the Charities Act 2011 in E&W)
- The charity registrar and regulator is OSCR – the Office of the Scottish Charity Regulator (not the the Charity Commission)
- The definition of ‘charity’ is slightly different under Scottish charity law – including a different definition of ‘public benefit’ (so charitable objects in E&W are not always charitable in Scotland)
- The new legal structure for charities is the SCIO (Scottish Charitable Incorporated Organisation) which, though similar in some ways to an English CIO, also has many differences – SCIOs have also been around since 2011 whereas English CIOs only date from 2013 – see our book on charitable incorporated organisations
- The charity accounting regulations in Scotland have different thresholds and requirements compared to E&W – for example:
- for small charities producing receipts and payments accounts, the regulations in Scotland are specific on what must be included
- there is no lower limit for independent examination (IE) of Scottish charity accounts (E&W charities can generally avoid IE if their income is under £25,000)
- the IE must be professionally-qualified in all cases where the accounts are on the accruals/SORP basis (in E&W this only applies if the income is over £250,000)
- a full audit applies to Scottish charities over £500,000 income (£1M in E&W)
- In Scotland, all organisations claiming to be charities must be registered* (in England many charities are excepted or exempt from charity registration)
- For many charities based in E&W but operating UK-wide there is the issue of dual-regulation: being registered with OSCR as well as with the E&W Charity Commission. This means meeting both the Scottish and English charity accounting requirements.
*There is an exception for limited fundraising in Scotland by charities established in England or elsewhere but only if their external charity status is made clear.