Guide
Trustee duties under Scottish charity law
Your legal duties as a charity trustee in Scotland, including the general duties under the 2005 Act, the expanded disqualification criteria introduced by the 2023 Act, and what to do if things go wrong.
If you serve as a charity trustee in Scotland, you have specific legal duties under the Charities and Trustee Investment (Scotland) Act 2005. These are not guidelines or best practice - they are statutory obligations, and OSCR can take enforcement action against trustees who fail to meet them.
The term "charity trustee" applies to anyone who manages or controls a Scottish charity, regardless of what title they use. Board members, directors of a charitable company, committee members of an unincorporated charity, and members of a SCIO who serve on its board are all charity trustees for the purposes of the 2005 Act.
Your general duties in practice
Duty to act in the charity's interests
You must put the charity's interests ahead of your own or those of any other person or organisation. In practice this means:
- Declaring any conflict of interest before decisions are taken
- Withdrawing from discussions and votes where you have a personal interest
- Not using your position for personal gain
- Ensuring related-party transactions are properly authorised and at arm's length
Duty of care and diligence
You must act with the care and diligence that a reasonably prudent person would apply. This does not require professional expertise, but it does require:
- Reading papers before meetings and asking questions you do not understand
- Attending meetings regularly (persistent non-attendance may amount to breach of duty)
- Ensuring the charity has adequate financial controls
- Seeking professional advice when decisions are beyond the board's expertise
Duty to comply with the constitution
You must act within the powers given by the charity's governing document. If you want to do something the constitution does not permit, you must change the constitution first through the proper process.
Disqualification from trusteeship
The 2023 Act significantly expanded the grounds on which a person is disqualified from acting as a charity trustee in Scotland. You must not act as a trustee if you are disqualified, and appointing someone you know to be disqualified is an offence.
What to do if a disqualification issue arises
If you become aware that a current trustee may be disqualified, you should:
- Ask the person to confirm whether any disqualification ground applies
- If it does, the person must step down immediately
- Record the matter in the board minutes
- Notify OSCR as a notifiable event
- If uncertain, seek legal advice before the person attends any further meetings
Applying for a waiver
A disqualified person may apply to OSCR for a waiver, allowing them to act as a trustee despite the disqualification. OSCR will consider the circumstances, including the nature and age of the offence and the person's conduct since. Waivers are not automatic and may be granted with conditions.
Notifiable events for trustees
As a trustee, you must ensure that OSCR is notified promptly when certain serious events occur. Failure to report notifiable events is itself a governance failing that OSCR may investigate.
When things go wrong
If you discover that something has gone wrong at your charity - whether financial irregularity, a safeguarding concern, or a governance failure - take the following steps:
- Act immediately: Do not wait for the next board meeting. Call an emergency meeting or consult fellow trustees urgently.
- Protect people and assets: If there is a risk to beneficiaries, staff, or charity funds, take immediate steps to mitigate it (e.g., suspend an employee under investigation, restrict bank account access).
- Report to OSCR: Submit a notifiable event report through OSCR Online. OSCR would rather hear from you early than discover a problem later.
- Report to other bodies: Depending on the issue, you may also need to report to the police, HMRC, the Information Commissioner, or other regulators.
- Take legal advice: For serious issues such as fraud, significant financial loss, or safeguarding failures, seek legal advice immediately.
- Record everything: Document what happened, when you found out, what you did, and why. This record demonstrates that trustees acted properly.
OSCR's approach to enforcement generally distinguishes between charities where trustees act promptly and transparently when problems arise, and those where trustees try to conceal issues or fail to act. Self-reporting and swift action are significant mitigating factors.