With less than 500 days until the proposed Scottish independence referendum, the charity sector in Scotland is focusing increasingly on the impact which independence might have on the sector as a whole.
If the original drafting in the Land and Buildings Transaction Tax (Scotland) Bill is anything to go by, charity tax reliefs could look quite different from those which presently apply – and some practitioners question whether such a change, if enacted, would have been consistent with EU law.
As for the regulation of charities by the Office of the Scottish Charity Regulator (OSCR), this is already devolved to Scotland and it would be fair to expect that little would change on a practical level: but again this remains an unknown in the absence of explicit government policy.
With all of this in mind, charities are beginning to look at joining in the debate on independence as the referendum approaches. OSCR has produced draft guidance for charity trustees which reminds charities that:
- They must not be party political;
- They can only be political (but not party political) if their constitution does not prohibit it;
- They must only advance their charity's objectives; and
- Charity trustees must act in the best interests of the charity.
OSCR also encourages charity trustees to consider the possible impact on their reputation when making any public comment. Some commentators have construed this as an attempt to stifle debate, but it seems clear that OSCR is encouraging charities to think carefully about the wider impact of joining in the debate – including how a fixed approach might be viewed by beneficiaries, supporters, donors and others.
The draft guidance makes it clear that OSCR sees no difficulty with a thought-through position on Scottish independence, on issues relevant to a charity's own purposes. It encourages trustees to consider the impact of the referendum result, while reminding them to act independently of funders or other third parties who themselves may be campaigning for a"yes" or"no" vote.
Charity trustees, in their individual capacity, are of course entitled to express their personal opinions, provided they make the distinction clear.
Far from preventing charities from engaging in the debate on constitutional change, the OSCR draft guidance prompts charities to consider their position and, within the bounds of charity law, to make that position clear where appropriate and where relevant to their charitable purposes. That is as it should be. It will be helpful if the final OSCR guidance takes on a subtly different tone to make that position clearer.