Commentary on Provisions The schedule Paragraph 16 – SCIO documents
189.Section 15 of the 2005 Act allows the Scottish Ministers to make regulations imposing requirements on Scottish charities about the information that they must disclose on such documents as are specified in the regulations. This power has been used to impose requirements under the Charities References in Documents (Scotland) Regulations 2007 (SSI 2007/203). Under these, a charity is required to state its charity number, official name, any other name by which it is commonly known and, where its name does not include “charity” or “charitable”, to state that it is a charity using one of a number of designated terms. This rule applies to a whole host of documents issued or signed on the charity’s behalf – including business letters and emails, adverts, any document soliciting donations for the charity, contracts, and the home page of the charity’s website.
190.However, under section 52(4) of the 2005 Act, these rules do not apply to SCIOs. Instead, SCIOs are subject to their own rules. Under section 52 of the 2005 Act, a SCIO is required to state its name and, if it is not already clear from its name, the fact that it is a SCIO. This must be done on such documents as are specified in regulations. As at the time of publication of these notes (August 2023), regulation 9 of the Scottish Charitable Incorporated Organisations Regulations 2011 (SSI 2011/44) specifies the same list of documents as applies under section 15 of the 2005 Act. There was, though, originally no ability to expand the information which must be included.
191.This paragraph of the Act’s schedule expands the regulation-making power which relates to SCIOs. This expansion means that, like other charities, they can be required to provide further information (beyond just their name and their SCIO status) on any specified documents. This would allow, for example, SCIOs to be required to provide their charity numbers (or any working name they use) in the same way as any other charities. As with section 15 of the 2005 Act, there is also an ability to create exemptions or to allow certain things to be stated in a language other than English where the documents in question are otherwise wholly or mainly in another language.
192.Breach of the requirement that a SCIO states its name and SCIO status on specified documents can be a criminal offence (see section 53(1) of the 2005 Act). This is because it is important for those dealing with a SCIO to know what legal form it takes, since its limited liability status may have implications for those dealing with it. Since the additional information which may be required under regulations is not of the same nature, the offence is not extended to it. However, failure to comply with the new requirements will, as with a failure to comply with requirements imposed on other charities under section 15, constitute misconduct in the administration of the charity under section 66(4) of the 2005 Act.