The Scottish Council of Voluntary Organisations has criticised the Scottish regulator, OSCR, for stepping “outside its regulatory remit” in draft guidance produced for charities on the Scottish independence referendum.

OSCR’s guidance, published for consultation on 23 April, reiterates the legal position on political discussion and campaigning and offers charities advice on how to participate responsibly. But SCVO has produced alternative guidance which the umbrella body claims is “more appropriate”.

Its guidance removes any reference to risk and reputational damage, which SCVO says runs through OSCR’s guidance, but “does not fall under the regulator’s remit”. SCVO adds that “charity trustees are capable of making a balanced and well-thought out decision on what role, if any, they take in the independence referendum”.

The umbrella body says any OSCR guidance should only cover what is legally permissible by the Charity Act 2005 and should make clear when the regulator is making an interpretation of the Act. To this extent it claims that one of the conditions outlined for charities to participate in the referendum is incorrect:

“The first two conditions are appropriate as they have a direct link to charity law,” says SCVO in its response, “However, it is the interpretation of the general trustee duty ‘to act in the interests of the charity’ where we have concerns.

“In the guidance this duty is interpreted to mean ‘thought fully about any possible consequences’ and ‘will not put the charity at risk’. It is our view that this interpretation is incorrect, goes beyond OSCR’s regulatory remit and moves into the territory of advising charities about the type of activity they should undertake,” the body states.

It also criticised the month-long consultation, advising that a consultation period of 13 weeks is “established protocol”.

SCVO's campaigning

SCVO has been a loud voice in campaigning against welfare cuts, one of the SNP’s key policies, ahead of the referendum. Its chief executive Martin Sime (pictured) has spoken with BBC Radio Scotland on the future of Scotland and has written numerous blogs on the impact of cuts. He was on the Scotland Bill Committee, informing the Scotland Act which implements the recommendations of the final report of the Commission on Scottish Devolution.

He was called upon to resign over claims of political bias last year by Liberal Democrat MP Willie Rennie. Sime’s position was heartily defended by SCVO’s convenor (chair), Alison Elliot.

OSCR says its guidance was produced following discussion with several public bodies, umbrella groups, charities and professional advisers. Its chief executive, David Robb, said:

“Charities can have an important part to play in the independence debate, and we want their voices to be heard.  As a responsive, responsible regulator we are developing guidance to promote clarity, so that charity trustees can participate in that debate within the requirements of charity law.

“We welcome SCVO’s contribution and, along with other submissions, this response will be considered carefully as we finalise our guidance over the next few weeks.”

 

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