Charity Law in Scotland: The Charities and Trustee Investment (Scotland) Act 2005

If you haven’t already done so, please read our 'Introduction and Overview’ before reading further (see link below).

There are no explicit restrictions on campaigning by charities under the 2005 Act. However, an organisation cannot be a charity if it is a political party or is it set up to advance a political party. 

Everything a charity does must be in keeping with its charitable purpose(s) and must provide public benefit with respect to those purposes. This applies to campaigning as much as to anything else. So, for example, if a charity was set up to 'save lives by enabling individuals to learn basic first aid' it would have to be able to demonstrate that any campaigning it undertook furthered the saving of lives etc and provided public benefit. This may sound a little complicated but if one imagines the following: the charity launches a campaign to convince politicians that first aid training should be compulsory for all school children. This activity (i.e. the campaign itself) is clearly in furtherance of the charitable purpose and it is for the public benefit because not only will the campaign in itself probably provide information of value to the public but more to the point if it all comes off then it is a pretty safe bet that lives will be saved.

Similarly, if a political party agreed with the campaign and adopted its aim as a policy the charity could still support that policy because it would reflect the charity's own purpose. What the charity couldn't do is support all the party's policies just because they were the party's policies. One might pose the question "What if all the party's policies marry up with the charity's purposes?' The answer is 'It's never going to happen since the range of charitable purposes is limited and the range of party policies is unlimited. There could never be true congruence.'

Other than that, the concept of 'political' is not covered in the 2005 Act. In other words charities in Scotland now have considerably more clarity in terms of campaigning than was previously the case.

OSCR will not specifically concern itself with campaigns just because they are campaigns but only if something is 'wrong' in terms of some other aspect of the Act.

To be updated: The Charity Commission guidance on this matter identifies which 'political activities' it considers are, in practice, permissible. Much of this English/Welsh guidance mirrors the situation that the 2005 Act has in effect created in Scotland. However, the position in Scotland is different from England/Wales and the Charity Commission's guidance is not definitive (or even, it might be argued, in any way applicable!) vis-a-vis the situation in Scotland. OSCR may well produce its own guidance on this issue in due course.