The Charities and Trustee Investment (Scotland) Bill: falling between two stools?

The Scottish Parliament has been considering the Charities and Trustee Investment (Scotland) Bill. The principal objective of the Bill is to reform the existing provision for the regulation of charities in Scotland to make it more “robust, proportionate and transparent”. The Bill adopts as model the system for charities regulation in England and Wales, drawing on the existing provisions of the Charities Acts 1992 and 1993, but taking into account the improvements to the English system proposed in the English Charities Bill. In doing so, the Scottish Bill ignores Scotland's own common law of charitable and public trusts, which might have been taken as the basis of an indigenous Scottish equivalent of the English charities system. Instead, it favours a policy of “intelligent translation” of the English model into Scotland, adapting it where appropriate to suit Scottish circumstances. The article argues that in three key areas, however, the Scottish Bill risks falling between the two stools of intelligent translation of the English model, on the one hand, and a distinctively indigenous system, on the other. These three areas are the definition of charity, the duties of charity trustees, and the issue of legal form for charities. The article examines each area by reference to the English system, and argues that its treatment in the Scottish Bill is deficient, either because the English model has been departed from in search of a speciously Scottish variant, or because Scottish circumstances demand a more robust adaptation of the English model than is offered in the Bill, one perhaps drawing on the resources of the common law. The article concludes by suggesting how a more rigorous application of the Bill's own policy of intelligent translation of the English model might, in these three problem areas, bring it closer to meeting its objective.