Policy responses and statements
- Name of organisation:
- The Scottish Government
- Name of policy document:
- Consultation on Options for Future Charity
Appeals Route in Scotland
- Deadline for response:
- 5 April 2010
Background: T he Charities and Trustee Investment
(Scotland) Act 2005 was passed by the Scottish Parliament on 9 June
2005 and received Royal Assent on 14 July 2005. The Act introduced
new arrangements for the regulation of charities in Scotland and established
the Office of the Scottish Charity Regulator (OSCR) as the new independent
regulator. The legislation provided for the establishment of an independent
appeals panel as an important counterbalance to OSCR within the overall
regulatory regime. Charities could appeal certain decisions made by
OSCR, which the Panel would consider.
The Scottish Charity Appeals Panel (SCAP) was set up on 1 October
2006 as a new executive Non-Departmental Public Body (NDPB). SCAP replaced
the previous appeals route of applying to the Court of Session, providing
a simpler, quicker and more cost effective means than litigation for
charities, and those involved in their management, to appeal decisions
affecting them. The Scottish Charity Appeals Panel Rules, which set
out the procedure for hearing appeals, came into force on 31 December
2006.
It was initially envisaged that SCAP would receive between 50-100
appeals per year. However, in 3 years of operation, SCAP has only received
1 appeal with 1 further appeal pending. As a result, on 6 November
2008, the Scottish Government announced its intention to abolish SCAP
and consult on where its functions would best sit. This consultation
seeks those views from the charity sector and other interested parties.
Whilst there is no longer a need for a stand-alone charity appeals
body, the Scottish Government is committed to maintaining an appeals
route for charities unhappy with a decision of the Office of the Scottish
Charity Regulator (OSCR). However, the decision to abolish SCAP as
a stand-alone body has been taken, and is not, therefore, the subject
of this consultation.
This consultation is an opportunity to give views about the location
of the new appeals route before any decision is taken by the Government.
Although the consultation focuses on the location of the new appeals
route, the Scottish Government would also welcome any comments that
respondents may have on the functions or operation of the new appeals
route
COMMENTS ON
THE SCOTTISH GOVERNMENT
CONSULTATION ON OPTIONS FOR FUTURE CHARITY APPEALS
ROUTE IN SCOTLAND
The Royal College of Physicians of Edinburgh is pleased to respond to the
Scottish Government on the Consultation on Options for
Future Charity Appeals Route in Scotland.
Question 1: Do you agree with the approach to replace SCAP with the
route of appeal to the Court of Session.
The College has concerns that by making the Court of Session the first route
of appeal many charities will be put off pursuing their right to appeal by
the prohibitive cost of legal representation. This may also affect smaller
charities disproportionately as it is likely they will not have spare resources
to fund such appeals.
In addition, returning to a system of appeal that preceded the establishment
of SCAP seems a rather regressive step. Any decision to do so should
only be taken after a further review of the reasons behind the decision to
replace the Court of Session with SCAP initially and whether this reveals earlier
weaknesses or concerns with the Court of Session as a suitable route for charity
appeals
Question 2: Do you agree with the approach to replace SCAP with the
route of appeal to the Sheriff Court?
The College believes that the Sheriff Court may be a suitable route through
which to address first stage appeals as it is likely to be a less costly route
than appealing via the Court of Session. However, it recommends that
any change to a Sheriff Court led system should be introduced only once the
Scottish Civil Courts Review is complete to avoid unnecessary additional changes
to appeals structures.
The College recognises that in the short term there may be a loss of specialist
jurisdiction, however, it feels that this would be addressed over time particularly
if some sheriffs are encouraged to develop specialist expertise and knowledge
of charity law issues.
Question 3: Do you agree with the approach to replace SCAP with an
appeals structure within OSCR?
The College does not agree with the proposal to replace SCAP with an appeals
structure within OSCR as it believes that to ensure confidence in any appeals
process it should remain independent of both government and OSCR (as the decision
making body).
Question 4: Do you agree with the option to merge SCAP with another
tribunal body?
The College is supportive of making the first route of appeal a tribunal body
because of the clear benefits of cost –effectiveness and independence.
As with Sheriff Courts, lack of expertise amongst tribunal members is of concern. The
College therefore supports the development of a pool of independent charity
law specialists to sit on panels.
The College has concerns about the proposal to merge with exiting tribunal
bodies as there is no obvious with a function that is sufficiently similar
at this time.
Question 5: Do you think SCAP should be considered as part of the
review of tribunals in Scotland?
The College believes that SCAP should be considered as part of the review
of tribunals in Scotland. As noted in question 4 the College is supportive
of using a tribunal body as the first route for appeal and feels that this
formal review could identify a tribunal body or develop a tribunals service
that was suited to handling charity appeals or could be adapted to take this
role.
Question 6: If your preferred option is option 5, which alternative
option do you think should be considered in the short term?
The College recommends that SCAP is retained in the short term whilst the
tribunals review is completed. If this is not possible, the College’s
second preference is on balance for SCAP to be merged with a suitable existing
tribunal in the meantime. The Sheriff Court option remains a viable alternative,
although its effectiveness as a temporary solution may depend on how long it
takes to complete the Scottish Civil Courts Review. An early outcome
of this review and any associated changes may simply complicate matters further.
Additional Questions:
What, in your view, are the key features of a new charity appeals
route?
The College believes that the key features of any solution should be that
it remains independent of government and OSCR, is a cost-effective route for
appeals (thus appealing to a wide cohort of charities) and ensures that the
body assessing decisions includes some specialist expertise in charity law.
Are there any other options which you would like to be considered
at this time?
None
Are there any other issues regarding the functions or operations of
the new appeals route which you may wish to raise at this time?
There may some benefit to be gained by incorporating some of the strengths
of the appeals (tribunal-based) systems employed in England & Wales and
Northern Ireland and incorporating them within a Scottish equivalent. One key
characteristic is the presence of a two-tier appeal structure in England. This
has the benefit of allowing for a second opinion on any key appeal decisions
and could be incorporated in any solution through devolved tribunals. Alternatively,
the Court of Session could be used as this route for this second appeal.
Copies of this response are available from:
Lesley Lockhart,
Royal College of Physicians of Edinburgh,
9 Queen Street,
Edinburgh,
EH2 1JQ.
Tel: 0131 225 7324 ext 608
Fax: 0131 220 3939
[6 April 2010]
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