Options for Future Charity Appeals Route in Scotland
The following questions can be completed online.
SCAP was established to provide a simple and cheap way for charities and those involved in their management to appeal certain decisions made by OSCR. Prior to the establishment of SCAP, under the Charities and Trustee Investment (Scotland) Act 2005, decisions relating to the supervision of charities under the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 could be appealed to the Court of Session. This was time consuming and expensive for charities, many of who did not have the funds to appeal. Appeals in relation to the granting of charitable status were made to Her Majesty's Revenue and Customs (Inland Revenue) Commissioners.
The number of appeals received by SCAP has been far fewer than anticipated and, in response to this, on 6 November 2008, the Scottish Government announced its intention to abolish SCAP whilst remaining committed to maintaining an appeals route for charities unhappy with a decision of the Office of the Scottish Charity Regulator (OSCR). The low number of appeals received to date means that a stand alone charity appeals body is no longer justified, particularly in light of current pressures on public spending.
The Scottish Government has developed options which it considers may be appropriate routes for charity appeals in Scotland, following the abolition of SCAP, and we would welcome your views on those options, discussed below.
Option 1: Replace with appeal to Court Of Session
The advantages of this option would include the continued independence of the appeals route from Ministers and OSCR. While the cost of appealing through this route would undoubtedly be higher than currently, the low number of appeals suggests that cost is not a consideration for charities when deciding whether to appeal a decision by the Regulator. Charities who are currently unhappy with a decision made by SCAP have the option of appealing that decision to the Court of Session. Therefore most significant decisions are likely to end up here. It is worth noting that the option to replace SCAP with an appeal to the Court of Session would merely be a return to the appeals route open to charities prior to the establishment of SCAP.
Question 1: Do you agree with the approach to replace SCAP with the route of appeal to the Court of Session?
Option 2: Replace with appeal to Sheriff Court
The advantages of this approach mirror some of those for option 1, above. In addition, the costs of an appeal to the Sheriff Court would be lower than the costs for an appeal to the Court of Session.However, it is worth pointing out that the Scottish Government is currently considering proposals made by Lord Gill in his report of the Scottish Civil Courts Review, published on 30 September 2009, to reform the structure of Sheriff Courts in Scotland. These proposals include; introducing a new judicial office-holder within the sheriff court (the District Judge) who would deal with certain cases currently dealt with by sheriffs, and the introduction of "specialised" sheriffs with expertise in particular areas. This option could mean further changes to the charity appeals route, in determining where it would sit in any new structure.
A possible disadvantage would be the loss of a specialist jurisdiction with a particular knowledge of charity law issues, although this could perhaps be mitigated by developing a degree of specialism in this subject amongst a certain number of sheriffs.
Question 2: Do you agree with the approach to replace SCAP with the route of appeal to the Sheriff Court?
Option 3: Replace with separate structure within OSCR
This would mirror some of the advantages of a general tribunal body and could be accommodated as a new and distinct role for the OSCR Board. The Board members are non-executive directors, and are not involved in decision making, therefore their role could be expanded to cover decisions on appeals. However, the most significant drawback would be the lack of independence from the body against which an appeal was being made.
Question 3: Do you agree with the approach to replace SCAP with an appeals structure within OSCR?
Option 4: Merge with another tribunal body
This option would have the advantage of maintaining an appeals route without recourse to the courts, which may be more cost-effective and quicker for appellants and the regulator. In addition, independence from both Ministers and OSCR would also be maintained. Potential difficulties might include the lack of expertise among tribunal members, who would not necessarily be specialists in charity law. This lack of expertise could be addressed by having a pool of charity law specialists who could be called upon to sit as panel members on existing tribunals, as and when required.
There are a number of existing tribunals in Scotland, the largest of which are: Children's Hearings, the Lands Tribunal for Scotland and the Mental Health Tribunal for Scotland. However, there is currently no tribunal body in Scotland which carries out a directly comparable function. As well as amending the Charities & Trustee Investment (Scotland) Act 2005, this option could involve amending legislation covering the other tribunal body involved.
Question 4: Do you agree with the option to merge SCAP with another tribunal body?
Option 5: Consider as part of the ongoing tribunals review
The Scottish Government is currently considering possible changes to tribunals in Scotland. In September 2008 the Administrative Justice Steering Group, chaired by Lord Philip, published a report on tribunals, Options for the Future Administration and Supervision of Tribunals in Scotland . It found the current arrangements were unsatisfactory, and set out five options for the future. We have said that we will examine in depth two of those options:
- establishing a Scottish Tribunals Service to support all devolved tribunals; and
- establishing a Scottish Tribunals Service to support both devolved tribunals and GB-wide tribunals operating in Scotland.
We are currently gathering information and discussing the issues with those involved with tribunals. We are also looking at ways to improve the operation of tribunals before the possible creation of such a Service. We want to improve access to justice, and ensure there is a consistent standard of service across the tribunal system. Areas we are exploring include IT systems, accommodation, hearing venues and administrative support. We are also looking at the tribunal appointment processes and training of tribunal members.
In June 2009 the second report of the Administrative Justice Steering Groupwas published, which recommended that Scottish Minsters consider the establishment of a Scottish Tribunal Service to support all administrative justice tribunals operating in Scotland. We plan to be able to consult publically on the way forward for tribunals in Scotland by the summer of 2010.
As with option 4, this option would have the potential advantage of maintaining an appeals route without recourse to the courts, which may be more cost-effective and quicker for appellants and the regulator. In addition, independence from both Ministers and OSCR would also be maintained. Potential difficulties might include the lack of expertise among tribunal members, who would not necessarily be specialists in charity law.
This option will not be available immediately and it may be that if this is the preferred option, the Scottish Government would have to look at an alternative option for the charity appeals route in the short term. If this is your preferred option we would appreciate if you could state which alternative option you would like to see taken forward in the short term.
Question 5: Do you think SCAP should be considered as part of the review of tribunals in Scotland?
Question 6: If your preferred option is option 5, which alternative option do you think should be considered in the short term?
The questions above can becompleted online.